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Home My WebLink About04814 - PRESERVE GOLF COMPANY SUBDIVISION IMPROVEMENT MCWETHY 555 N VIA MONTE VISTA TM 28966 APN 505-130-015 505-130-016 SEC 10 A.OQYALM Sp9 iy O u a O rouc^ P 4</FORN� City Council Staff Report Date: January 18, 2012 CONSENT CALENDAR Subject: APPROVAL OF TIME EXTENSIONS OF SUBDIVISION IMPROVEMENT AGREEMENTS FOR VARIOUS PROJECTS From: David H. Ready, City Manager Initiated by: Public Works and Engineering Department SUMMARY A part of the City's approval of a final subdivision map is the concurrent approval of a subdivision improvement agreement between the City and developer. The agreement secures the costs of on-site and off-site public improvements, and provides a 2-year period to complete the improvements. Given the current state of the economy, many projects remain incomplete and it is necessary to extend the subdivision improvement agreements to ensure the City retains an ability to pursue the securities in the event a developer defaults. RECOMMENDATION: Adopt Resolution No. "A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, AUTHORIZING TIME EXTENSIONS OF VARIOUS SUBDIVISION IMPROVEMENT AGREEMENTS." STAFF ANALYSIS: Subdivision improvement agreements are approved as part of the City Council's approval of a final map for subdivision of property for residential or commercial purposes. The agreement between the City and Subdivider obligates the Subdivider to construct all the necessary public improvements, which are secured with bonds or other suitable security to ensure the improvements are constructed and laborers and suppliers are paid. The City retains the ability to call the securities in the event public improvements are not completed and the Subdivider has defaulted on the property. As the national economic recession continues to impact the real estate market, many residential projects have stopped construction and are on indefinite hold until the market improves. Terms of the subdivision improvement agreement require that the Subdivider complete the subdivision improvements within a certain time frame (generally two years ITEM NO. City Council Staff Report • • January 18, 2012- Page 2 Time Extension of Various Subdivision Agreements from the City's approval of the improvement plans). As the real estate market continues to be impacted by the on-going economic recession, it is staffs recommendation that the City Council acknowledge that factors beyond the Subdivider's control have delayed completion of the projects, and requires an additional time extension to various subdivision improvement agreements. In 2009, 2010, and 2011 the City Council previously approved en masse a one-year time extension to various subdivision improvement agreements. Given the continued economic recession, staff recommends that the City Council proactively extend the following subdivision improvement agreements, as follows: Tract Map 30050 "Alta", extended to February 3, 2013 Tract Map 31263, "The Towers", extended to February 3, 2013 Tract Map 32160 "Enclave", extended to February 18, 2013 Tract Map 30046 "Monte Sereno", extended to March 18, 2013 Tract Maps 32233-1, -2, -3 & -4 "Escena", extended to April 2, 2013 Tract Map 32675 "Alexander Country Club Estates", extended to April 2, 2013 Tract Map 33561 "Palermo", extended to April 2, 2013 Tract Map 33162 "Pedregal", extended to April 4, 2013 Tract Map 31848-1 "Avalon", extended to May 4, 2013 Tract Map 32732 "Oceo", extended to May 20, 2013 Tract Map 33933 "Murano", extended to May 24, 2013 Tract Map 28966 "Preserve Estates", extended to June 18, 2013 Tract Map 31514 "Luminaire", extended to June 18, 2013 Tract Map 31525 "Four Seasons III, extended to June 18, 2013 Tract Map 33161 "Vista San Jacinto", extended to August 9, 2013 It should be noted that in most cases a majority of the subdivision improvements have been completed, but certain on-site improvements remain incomplete. For example, many of these subdivisions have installed base-paving (the first 2 inches of asphalt concrete pavement), but have not yet installed the final "cap" (the last 1 inch of asphalt concrete pavement). Delaying the final "cap" on the streets prevents the streets from being damaged during construction of the houses, and is often delayed until the very end of construction. Delaying the final "cap" also prevents the final adjustment of sewer manholes and water valves to grade, which prevents the City and DWA from granting final acceptance of those utilities. Of the subdivisions listed above, the following are projects that have not completed a majority of the on-site or off-site improvements: Tract Map 33561 "Palermo" (the second phase of the development has not been constructed, all off-site improvements are completed); Tract Map 33162 "Pedregal" (the site has been graded and the on-site sewer extension has been completed, but most on-site improvements are incomplete, and no off-site improvements have been completed); 02 City Council Staff Report • • January 18, 2012- Page 3 Time Extension of Various Subdivision Agreements Tract Map 33933 "Murano" (the site has been graded and two of the four on-site private streets have been completed, but construction of the last two on-site private streets has not started); Tract Map 33161 "Vista San Jacinto" (the on-site improvements remain incomplete); Staff will continue to coordinate with each Subdivider, and in some cases the property has defaulted to the lender, requiring staff to coordinate with a new developer or the bank on completion of remaining improvements. The City Council's formal approval of a time extension to the Subdivision Improvement Agreements establishes a public record of the action, and ensures that the surety companies continue to acknowledge the validity of the agreement and the City's ability to use the securities in the event of a Subdivider's default of the Agreement. FISCAL IMPACT: None. SUBMITTED: Prepared by: Recommended by: /W L Marcus L. Fuller David J. Barakian Assistant Director of Public Works Director of Public Works/City Engineer Approved by: Thomas J. Wilsq1K, Asst. City Manager David H. Ready, Ci et ATTACHMENTS: 1. Resolution 03 RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, AUTHORIZING TIME EXTENSIONS OF VARIOUS SUBDIVISION IMPROVEMENT AGREEMENTS WHEREAS, the City Council has approved various subdivisions for development projects throughout the City; and WHEREAS, included with the City Council's approval of each subdivision is approval of a Subdivision Improvement Agreement between the City and Subdivider identifying certain obligations of the Subdivider, including an obligation to complete subdivision improvements within two years of commencement of work; and WHEREAS, the current economic recession has significantly impacted the real estate market; and WHEREAS, a number of residential subdivisions throughout the City are in various stages of completion, and have been placed on an indefinite hold by the Subdivider until the real estate market improves; and WHEREAS, it is necessary to grant a time extension to various subdivision improvement agreements. THE CITY COUNCIL OF THE CITY OF PALM SPRINGS DOES HEREBY RESOLVE AS FOLLOWS: The City Council hereby approves time extensions to the following Subdivision Improvement Agreements, as follows: Agreement No. 4814, Tract Map 28966, extended to June 18, 2013 Agreement No. 4955, Tract Map 30050, extended to February 3, 2013 Agreement No. 5086, Tract Map 32233-1, extended to April 2, 2013 Agreement No. 5087, Tract Map 32233-2, extended to April 2, 2013 Agreement No. 5088, Tract Map 32233-3, extended to April 2, 2013 Agreement No. 5089, Tract Map 32233-4, extended to April 2, 2013 Agreement No. 5100, Tract Map 31263, extended to February 3, 2013 Agreement No. 5105, Tract Map 32160, extended to February 18, 2013 Agreement No. 5131, Tract Map 30046, extended to March 18, 2013 Agreement No. 5155, Tract Map 31514, extended to June 18, 2013 Agreement No. 5246, Tract Map 33561, extended to April 2, 2013 Agreement No. 5276, Tract Map 32675, extended to April 2, 2013 Agreement No. 5324, Tract Map 33933, extended to May 24, 2013 Agreement No. 5393, Tract Map 31848-1, extended to May 4, 2013 04 Resolution No. • • Page 2 Agreement No. 5426, Tract Map 32732, extended to May 20, 2013 Agreement No. 5436, Tract Map 33161, extended to August 9, 2013 Agreement No. 5439, Tract Map 31525, extended to June 18, 2013 Agreement No. 5516, Tract Map 33162, extended to April 4, 2013 ADOPTED THIS 18th day of January, 2012. David H. Ready, City Manager ATTEST: James Thompson, City Clerk CERTIFICATION STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) ss. CITY OF PALM SPRINGS ) I, JAMES THOMPSON, City Clerk of the City of Palm Springs, hereby certify that Resolution No. _ is a full, true and correct copy, and was duly adopted at a regular meeting of the City Council of the City of Palm Springs on January 18, 2012, by the following vote: AYES: NOES: ABSENT: ABSTAIN: James Thompson, City Clerk City of Palm Springs, California 05 F 7A�M SA � �ti City of Palm Spril s 4 v Deparrment of Public Works and Engineering `hoq a h 3200 L lahquvz Canyon Way • Palm Springs, California 92262 C �p Tel: (7C>0) 333-a25� ' Fax: (760) 327---S;CO • We6�www ci pahm-springs.ca us '10FORa February 27, 2009 fA k Calise Development, LLC 790 North Mission Road Palm Springs, CA 92262 Attn: Valari Calise Re:Tract Map 28966 (Calise Development, LLC): Time Extension for Subdivision Improvement Agreement Ms. Calise: On February 18, 2009 the City Council approved a one-year time extension for the completion of improvements associated with Subdivision Improvement Agreement No. 4814 for Tract Map No. 28966 (Old Las Palmas Estates), with Calise Development, LLC, adding a requirement that the vacant property must be stabilized and maintained in accordance with the City's PM-10 Ordinance. The new expiration date for the Tract Map No. 28966 Subdivision Improvement Agreement is June 18, 2010. If you have any questions, I can be reached at (760) 323-8253, extension 8741. Sincerely, Carol Templeton n �: Engineering Associate U :c c� ry a;� Ce: Valan Calise, Calise Development, LLC-via facsimile;City Clerk,TM26966 file C1 Post Office Box 2743 1 Palm Springs, California 92263-2743 PA City of Palm Springs x7I • / Deparcmenc of Public Works and Engineering 3200 E."lihquia Canyon Way • Palm Sprints, California 92262 P qL/ppgl�� Tcl (760) 323.3253 • Cax: (iCp) 327""-$360 • Well: wcvwci.paLn-springs,ca.us June 25, 2008 Calise Development, LLC 790 North Mission Road Palm Springs, CA 92262 Attn: Valari Calise Re:Tract Map 28966 (Calise Development, LLC): Time Extension for Subdivision Improvement Agreement Ms. Calise: On June 18, 2008, the City Council approved a one-year time extension for the completion of improvements associated with Subdivision Improvement Agreement No. 4814 for Tract Map No. 28966 (Old Las Palmas Estates), with Calise Development, LLC, adding a requirement that the vacant property must be stabilized and maintained in accordance with the City's PM-10 Ordinance. The new expiration date for the Tract Map No. 28966 Subdivision Improvement Agreement is June 18, 2009. If you have any questions, I can be reached at(760) 323-8253, extension 8741. Sincerel y, Carol Templeton N Engineering Associate y n Cc: Va/arl Calise, Calise Development,UC-via facsimile;City Clerk;TM28966 file C77C r-- r ;C Cu .. +S r+ Posr Office Box 2743 • Palm Springs, California 92263-2743 Aol PALM (;- L City of Palm Springs Departmenc of Public Works and Engineering C' t•p`o. P x 3200 L. Tahquuz Canyon Way • Palm Springs, California 92262 Tel: (760) 323.8253 FiN (760) 322-8360 Web: wwwo palm-springs ca.us April 8, 2008 P �� 4 C= y Bond Specialists Insurance Services 78150 Calle Tampico, Suite 211 o La Quinta, CA 92253 Attn-. Marcia D. Smith '✓` Re: Tract Map 28966, (Las Palmas Estates) cn r w - Please consider this letter as the City of Palm Springs' notice that the obligations of the Subdivision Improvement Agreement between the City of Palm Springs and Calise Development, LLC (assumed from Preserve Golf Company, LLC) related to Tract Map 28966, have been partially satisfied. The remaining Faithful Performance Bond needed has been calculated using 2008 prices for the remaining items of work. The following security required by the agreement may now be reduced to the following amount: • Faithful Performance Bond; Bond No- 195755; $114,460.00 The following securities required by the Subdivision Improvement agreement shall remain in effect at this time. The Labor/Materials Bond can not be released until the City is receipt of copies of recorded Nolice(s) of completion, if any, with an updated Title Report for the entire property dated at least 60 days after the recorded Notice(s) of Completion, if any, OR 90 days after acceptance of the work if no Notice(s) of Completion are recorded, to verify existence of any recorded Mechanic's Liens. The Monumentation Bond can not be released until the City receives a letter from A/E Sanborn stating that the monumentation work has been completed and that they have been paid for the work. The Maintenance/Warranty Bond shall remain in full force and effect for one year after the date of acceptance of all of the improvements. • Labor/Materials Bond; Bond No. 1957551-M; $178,880,00 • Maintenance &Warranty Bond; Bond No. 195755WT $ 78,000.00 • Monumentation Bond; Bond No. 195756; $ 9,850.00 If you have any questions, I can be reached at (760) 323-8253, extension 8741. Sincerely, e�� Carol Templeton Engineering Associate cc: Valari Calise of Calise Development, LLC -via facsimile:(760) 320-6791;Marcia Smith of Bond Specialists Insurance Services-via facsimile;(760)564-1866,James Thompson, City Clerk; TM28966 file Post Office Box 2743 • Palm Springs, California 92263-2743 4ALAMI ©� City of Palm Springs • '' ti �y t h, , ' Department of Public Works and Engineering • ",'kaoea*em'" '" 3200 E. Tahquitz Canyon Way ° Palm Springs, California 92262 C <1 FQ RN Tel: (760)323-8253 ° Fax (760)322-8360 ° Web: www.ci.palm-springs.ca.us n.a June 21, 2006 M1\3 Bond Specialists Insurance Services W 78150 Calle Tampico, Suite 211 La Quinta, CA 92253 Attn: Marcia D. Smith Re: Tract Map 28966 (Las Palmas Bstatesf Please consider this letter as the City of Palm Springs' notice that the obligations of the Subdivision Improvement Agreement between the City of Palm Springs and Calise Development, LLC (assumed from Preserve Golf Company, LLC) related to Tract Map 28966, have been partially satisfied. The Desert Water Agency (DWA) waterline work was completed and accepted by DWA on September 7, 2005 (accounting for$162,240.00 of performance bond and $81,120.00 of labor/material bond that may be released). The Maintenance and Warranty portion of the bonds can not released until one year after the date of acceptance of the work in its entirety by the City of Palm Springs (accounting for $78,000.00 of bond that must remain in place). The monumentation bond cannot be released until the company that did the work notifies the City that the work has been completed and they have been paid for their services. The following subdivision securities required by the agreement may now be reduced to 68.8% to the following amounts: • Faithful Performance Bond: Bond No. 195755; $357,760.00 • Labor and Materials Bond: Bond No. 195755LM; $178,880.00 The following subdivision securites required by the Subdivision Improvement agreement shall remain in full force and effect until further notice: • Faithful Performance Bond (Monumentation): Bond No. 195756; $ 9,850.00 Warranty Bond: Bond No. 195755WT; $78,000.00 Post Office Box 2743 0 Palm Springs, California 92263-2743 r T1028966 Bond Decrease Letter 1 June 21, 2006 If you have any questions, I can be reached at(760) 323-8253, extension 8741. Sincerely, ��-ram ��VI� �✓v�� Carol Templeton Engineering Associate Cc: Valarf Calise,Calise Development,LLC-via facsimile(760)320-6791;Bond Specialists,Attention:Marcie D.Smith—via facsimile:(760) 564-18R,James Thompson,City Clerk 7M28966 file City of Palm Springs Office of the City Cleric � w, ill 3300 Tahgmoz Canyon Way• Palm Sprigs,California 92262 TEL (760)323-8204 • FAX:(760)322-8332 •TDD:(760)864-9527 i June 18, 2004 PRESERVE GOLF COMPANY LLC The serves as acknowledgment of receipt of the following Standby Letters of Credit: 15t National Bank, Standby Letter of Credit#53-019 in the amount of$520,000. 1" National Bank, Standby Letter of Credit#53-020 in the amount of$260,000. 1" National Bank, Standby Letter of Credit#53-021 in the amount of$78,000. 1st National Bank, Standby Letter of Credit#53-022 in the amount of$9,850. c +— Received this f day of June, 2004. c S BY: Preserve Golf Company, LLC Post Office Box 2743 • Palm Springs, California 92263-2743 n First National Bank MEMBER FDIC Date: January 5, 2004 Standby Letter of Credit#53-019 City of Palm Springs P. O. Box 2743 3200 E. Tahquitz Canyon Way Palm Springs, CA 92263-2743 Re: Preserve Golf Company LLC Ladies and Gentlemen: At the request of Preserve Golf Company LLC, a California limited liability company("Applicant"), First National Bank hereby establishes this irrevocable Standby Letter of Credit No. 53-019 in favor of City of Palm Springs, as Beneficiary, for the account of Applicant in the aggregate amount of US $520,000.00 (Five hundred twenty thousand and no/100 Dollars), effective January 5, 2004, and expiring at our counters at First National Bank, Rancho Santa Fe Branch, 6110 El Tordo, Rancho Santa Fe, California, 92067 (the "Rancho Santa Fe Branch") at 1:00 P.M. on January 5, 2005 (the"Expiration Date"). This Letter of Credit is available with First National Bank, at the Rancho Santa Fe Branch by sight payment upon your presentation of the following documents: 1. A signed and dated statement on the letterhead of Beneficiary purportedly signed by an authorized officer of Beneficiary that states that"The undersigned hereby certifies that Preserve Golf Company LLC has failed to pay City of Palm Springs certain amounts due and owing, and such amounts are greater than or equal to the amount being drawn hereunder. The undersigned certifies that it is a duly authorized representative of City of Palm Springs and is entitled to execute this draw request." 2. The Beneficiary's draft drawn on us at sight and bearing the clause"Drawn under ` First National Bank Irrevocable Unconditional Standby Transferable Letter of „ Credit No. 53-019 dated January 5, 2004." 3. The original or reissued replacement of this Letter of Credit and all amendments, f 1 the most current extension notice if any. Specific Instructions: 1. It is a condition of this Letter of Credit that the expiration date shall be deemed to be automatically extended without amendment for successive additional periods of one year each from the current expiration date (January 5, 2005), and a final additional extension to January 5, 2007 (the"Final Maturity Date"), unless First National Bank notifies the Beneficiary, at Beneficiary's current address, by certified mail, overnight mail or courier service, at least thirty(30)days prior to any expiry date that First National Bank elects not to consider this Letter of Credit renewed for any such additional period. In all events, this Letter of Credit will expire no later than such Final Maturity Date. P.O.Box 2388 Rancho Santa Fe,California 92067 phone(858)756-3023 fax(858)756-5797 n First National Barak MEMBER F010 2. Except as stated herein, all bank charges are for the Applicant's account. 3. First National Bank shall replace the original of this Letter of Credit with a Replacement Letter of Credit, if such original is lost, stolen, mutilated, or destroyed prior to full drawing upon prior receipt by First National Bank of any fees charged by it and an Affidavit of Lost Letter of Credit and Indemnity, executed by Beneficiary, acceptable to First National Bank in its sole discretion any bank charges for such replacement shall be payable by the Beneficiary. 4. As a condition of the issuance hereof the Beneficiary agrees to return to First National Bank, immediately following the Final Maturity Date, the original or any reissued replacement of the expired Letter of Credit, including all amendments thereto, if any, which remain in the possession of the Beneficiary. First National Bank engages with Beneficiary that all drafts drawn and documents presented in compliance with the terms of this Letter of Credit will be duly honored by First National Bank by payment of the amount demanded if presented to First National Bank, Rancho Santa Fe Branch prior to 1:00 P.M., on or before the Expiration Date hereof, or any automatically extended expiration date prior to 1:00 P.M. on the Final Maturity Date. If any instructions accompanying a drawing under this Letter of Credit request that payment is to be made by transfer to an account with us or at another bank, we and /or such other bank may rely on any account number specified in such instructions even if the number identifies a person or entity different from the intended payee. Except as expressly stated otherwise herein, this undertaking is not subject to any condition or qualification, and this Letter of Credit cannot be modified or revoked without the consent of both First Bank and the Beneficiary hereto. Upon payment to Beneficiary of the draft amount of this Standby Letter of Credit, First National Bank shall be fully discharged on its obligation under this Standby Letter of Credit and shall not thereafter be obligated to make any further payments under this Standby Letter of Credit. This Letter of Credit sets forth in full the terms of the engagement and undertaking between First National Bank and Beneficiary and such engagement and undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein other than Publication ISP 98 (as defined below)or in which this Letter of Credit is referred to or ,, to which Letter of Credit relates and any such reference shall not be deemed to incorporate herein by reference any document or instrument. This Letter of Credit is the individual obligation of First National Bank and is in no way contingent upon reimbursement with respect thereto or j upon First National Bank's ability to perfect any lien, security interest, or any other reimbursement. This Letter of Credit is subject to and governed by the International Standby Practices 1998 (ISP98)as issued by the International Chamber of Commerce and the laws of the State of California. First National Bank By: Richard Sr. Vice President/Chief Credit Officer P.O.Box 2388 Rancho Santa Fe,California 92067 phone(858)756-3023 fax(858)756-5797 i • n First National Bank MEMBER FDIC Date: January 5, 2004 Standby Letter of Credit#53-020 City of Palm Springs P. O. Box 2743 3200 E. Tahquitz Canyon Way Palm Springs, CA 92263-2743 Re: Preserve Golf Company LLC Ladies and Gentlemen: At the request of Preserve Golf Company LLC, a California limited liability company("Applicant"), First National Bank hereby establishes this irrevocable Standby Letter of Credit No. 53-020 in favor of City of Palm Springs, as Beneficiary,for the account of Applicant in the aggregate amount of US $260,000.00 (Two hundred sixty thousand and no/100 Dollars), effective January 5, 2004, and expiring at our counters at First National Bank, Rancho Santa Fe Branch, 6110 El Tordo, Rancho Santa Fe, California, 92067 (the "Rancho Santa Fe Branch") at 1:00 P.M. on January 5, 2005 (the"Expiration Date"). This Letter of Credit is available with First National Bank, at the Rancho Santa Fe Branch by sight payment upon your presentation of the following documents: 1. A signed and dated statement on the letterhead of Beneficiary purportedly signed by an authorized officer of Beneficiary that states that"The undersigned hereby certifies that Preserve Golf Company LLC has failed to pay City of Palm Springs certain amounts due and owing, and such amounts are greater than or equal to the amount being drawn hereunder. The undersigned certifies that it is a duly authorized representative of City of Palm Springs and is entitled to execute this draw request." 2. The Beneficiary's draft drawn on us at sight and bearing the clause"Drawn under }' First National Bank Irrevocable Unconditional Standby Transferable Letter of Credit No. 53-020 dated January 5, 2004." 3. The original or reissued replacement of this Letter of Credit and all amendments, the most current extension notice if any. Specific Instructions: 1. It is a condition of this Letter of Credit that the expiration date shall be deemed to be automatically extended without amendment for successive additional periods of one year each from the current expiration date (January 5, 2005), and a final additional extension to January 5, 2007 (the"Final Maturity Date"), unless First National Bank notifies the Beneficiary, at Beneficiary's current address, by certified mail, overnight mail or courier service, at least thirty(30)days prior to any expiry date that First National Bank elects not to consider this Letter of Credit renewed for any such additional period. In all events, this Letter of Credit will expire no later than such Final Maturity Date. P.O.Box 2388 Rancho Santa Fe,California 92067 phone(858)756-3023 fax(858)756-5797 0 n First National Bank MEMBER FDIC 2. Except as stated herein, all bank charges are for the Applicant's account. 3. First National Bank shall replace the original of this Letter of Credit with a Replacement Letter of Credit, if such original is lost, stolen, mutilated, or destroyed prior to full drawing upon prior receipt by First National Bank of any fees charged by it and an Affidavit of Lost Letter of Credit and Indemnity, executed by Beneficiary, acceptable to First National Bank in its sole discretion any bank charges for such replacement shall be payable by the Beneficiary. 4. As a condition of the issuance hereof the Beneficiary agrees to return to First National Bank, immediately following the Final Maturity Date, the original or any reissued replacement of the expired Letter of Credit, including all amendments thereto, if any,which remain in the possession of the Beneficiary. First National Bank engages with Beneficiary that,all drafts drawn and documents presented in compliance with the terms of this Letter of Credit will be duly honored by First National Bank by payment of the amount demanded if presented to First National Bank, Rancho Santa Fe Branch prior to 1:00 P.M., on or before the Expiration Date hereof, or any automatically extended expiration date prior to 1:00 P.M. on the Final Maturity Date. If any instructions accompanying a drawing under this Letter of Credit request that payment is to be made by transfer to an account with us or at another bank,we and/or such other bank may rely on any account number specified in such instructions even if the number identifies a person or entity different from the intended payee. Except as expressly stated otherwise herein, this undertaking is not subject to any condition or qualification, and this Letter of Credit cannot be modified or revoked without the consent of both First Bank and the Beneficiary hereto. Upon payment to Beneficiary of the draft amount of this Standby Letter of Credit, First National Bank shall be fully discharged on its obligation under this Standby Letter of Credit and shall not thereafter be obligated to make any further payments under this Standby Letter of Credit. This Letter of Credit sets forth in full the terms of the engagement and undertaking between First National Bank and Beneficiary and such engagement and undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein other than Publication ISP 98 (as defined below)or in which this Letter of Credit is referred to or to which Letter of Credit relates and any such reference shall not be deemed to incorporate herein by reference any document or instrument. This Letter of Credit is the individual obligation of First National Bank and is in no way contingent upon reimbursement with respect thereto or upon First National Bank's ability to perfect any lien, security interest, or any other reimbursement. This Letter of Credit is subject to and governed by the International Standby Practices 1998 m, (IISP98)as issued by the International Chamber of Commerce and the laws of the State of California. T First National Bank '-.•. 117-1 By: Richard Nance, Sr.Vice President/Chief Credit Officer P.O.Box 2388 Rancho Santa Fe,California 92067 phone(858)756-3023 fax(858)756-5797 n First National Bank. MEMBER FDIC Date: January 5, 2004 Standby Letter of Credit 453-021 City of Palm Springs P. O. Box 2743 :3200 E.Tahquitz Canyon Way Palm Springs, CA 92263-2743 Re: Preserve Golf Company LLC Ladies and Gentlemen: At the request of Preserve Golf Company LLC, a California limited liability company("Applicant"), First National Bank hereby establishes this irrevocable Standby Letter of Credit No. 53-021 in favor of City of Palm Springs, as Beneficiary, for the account of Applicant in the aggregate amount of US $78,000.00 (Seventy-eight thousand and no/100 Dollars), effective January 5, 2004, and expiring at our counters at First National Bank, Rancho Santa Fe Branch, 6110 El Tordo, Rancho Santa Fe, California, 92067 (the "Rancho Santa Fe Branch")at 1:00 P.M. on January 5, 2005 (the"Expiration Date"). This Letter of Credit is available with First National Bank, at the Rancho Santa Fe Branch by sight payment upon your presentation of the following documents: 1. A signed and dated statement on the letterhead of Beneficiary purportedly signed by an authorized officer of Beneficiary that states that"The undersigned hereby certifies that Preserve Golf Company LLC has failed to pay City of Palm Springs certain amounts due and owing, and such amounts are greater than or equal to the amount being drawn hereunder. The undersigned certifies that it is a duly authorized representative of City of Palm Springs and is entitled to execute this draw request." 2. The Beneficiary's draft drawn on us at sight and bearing the clause"Drawn under F^; First National Bank Irrevocable Unconditional Standby Transferable Letter of Credit No. 53-021 dated January 5, 2004." 3. The original or reissued replacement of this Letter of Credit and all amendments, 001 the most current extension notice if any. "I Specific Instructions: •' 1. It is a condition of this Letter of Credit that the expiration date shall be deemed to be automatically extended without amendment for successive additional periods of one year each from the current expiration date (January 5, 2005), and a final additional extension to January 5, 2007 (the"Final Maturity Date"), unless First w National Bank notifies the Beneficiary, at Beneficiary's current address, by certified mail, overnight mail or courier service, at least thirty(30)days prior to any expiry date that First National Bank elects not to consider this Letter of Credit renewed for any such additional period. In all events, this Letter of Credit will expire no later than such Final Maturity Date. P.O.Box 2388 Rancho Santa Fe,California 92067 phone(858)756-3023 fax(858)756-5797 n First National Bank MEMBER FDIC 2. Except as stated herein, all bank charges are for the Applicant's account. 3. First National Bank shall replace the original of this Letter of Credit with a Replacement Letter of Credit, if such original is lost, stolen, mutilated, or destroyed prior to full drawing upon prior receipt by First National Bank of any fees charged by it and an Affidavit of Lost Letter of Credit and Indemnity, executed by Beneficiary, acceptable to First National Bank in its sole discretion any bank charges for such replacement shall be payable by the Beneficiary. 4. As a condition of the issuance hereof the Beneficiary agrees to return to First National Bank, immediately following the Final Maturity Date, the original or any reissued replacement of the expired Letter of Credit, including all amendments thereto, if any, which remain in the possession of the Beneficiary. First National Bank engages with Beneficiary that all drafts drawn and documents presented in compliance with the terms of this Letter of Credit will be duly honored by First National Bank by payment of the amount demanded if presented to First National Bank, Rancho Santa Fe Branch prior to 1:00 P.M., on or before the Expiration Date hereof, or any automatically extended expiration date prior to 1:00 P.M. on the Final Maturity Date. If any instructions accompanying a drawing under this Letter of Credit request that payment is to be made by transfer to an account with us or at another bank, we and /or such other bank may rely on any account number specified in such instructions even if the number identifies a person or entity different from the intended payee. Except as expressly stated otherwise herein, this undertaking is not subject to any condition or qualification, and this Letter of Credit cannot be modified or revoked without the consent of both First Bank and the Beneficiary hereto. Upon payment to Beneficiary of the draft amount of this Standby Letter of Credit, First National Bank shall be fully discharged on its obligation under this Standby Letter of Credit and shall not thereafter be obligated to make any further payments under this Standby Letter of Credit. This Letter of Credit sets forth in full the terms of the engagement and undertaking between First National Bank and Beneficiary and such engagement and undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein other than Publication ISP 98 (as defined below)or in which this Letter of Credit is referred to or to which Letter of Credit relates and any such reference shall not be deemed to incorporate herein by reference any document or instrument. This Letter of Credit is the individual obligation of First National Bank and is in no way contingent upon reimbursement with respect thereto or upon First National Bank's ability to perfect any lien, security interest, or any other reimbursement. This Letter of Credit is subject to and governed by the International Standby Practices 1998 (ISP98)as issued by the International Chamber of Commerce and the laws of the State of California. First National Bank yR �� wr By: Richard Nance, Sr. Vice President/Chief Credit Officer P.O.Box 2388 Rancho Santa Fe,California 92067 phone(858)756-3023 fax(858)756-5797 First National Bank MEMBER FDIC Date: January 5, 2004 Standby Letter of Credit#53-022 City of Palm Springs P. O. Box 2743 3200 E. Tahquitz Canyon Way Palm Springs, CA 92263-2743 Re: Preserve Golf Company LLC Ladies and Gentlemen: At the request of Preserve Golf Company LLC, a California limited liability company("Applicant"), First National Bank hereby establishes this irrevocable Standby Letter of Credit No. 53-022 in favor of City of Palm Springs, as Beneficiary, for the account of Applicant in the aggregate amount of US $9,850.00 (Nine thousand eight hundred fifty and no/100 Dollars), effective January 5, 2004, and expiring at our counters at First National Bank, Rancho Santa Fe Branch, 6110 El Tordo, Rancho Santa Fe, California, 92067 (the "Rancho Santa Fe Branch")at 1:00 P.M. on January 5, 2005 (the"Expiration Date"). This Letter of Credit is available with First National Bank, at the Rancho Santa Fe Branch by sight payment upon your presentation of the following documents: 1. A signed and dated statement on the letterhead of Beneficiary purportedly signed by an authorized officer of Beneficiary that states that"The undersigned hereby certifies that Preserve Golf Company LLC has failed to pay City of Palm Springs certain amounts due and owing, and such amounts are greater than or equal to the amount being drawn hereunder. The undersigned certifies that it is a duly authorized representative of City of Palm Springs and is entitled to execute this draw request." 2. The Beneficiary's draft drawn on us at sight and bearing the clause"Drawn under First National Bank Irrevocable Unconditional Standby Transferable Letter of Credit No. 53-022 dated January 5, 2004." 3. The original or reissued replacement of this Letter of Credit and all amendments, G the most current extension notice if any. 03 Specific Instructions: Q1 1. It is a condition of this Letter of Credit that the expiration date shall be deemed to be automatically extended without amendment for successive additional periods of one year each from the current expiration date (January 5, 2005), and a final additional extension to January 5, 2007 (the"Final Maturity Date"), unless First 4-1111 National Bank notifies the Beneficiary, at Beneficiary's current address, by certified mail, overnight mail or courier service, at least thirty(30)days prior to - 1 any expiry date that First National Bank elects not to consider this Letter of Credit renewed for any such additional period. In all events,this Letter of Credit will expire no later than such Final Maturity Date. P.O.Box 2388 Rancho Santa Pe,California 92067 phone(859)756-3023 fax(858)756-5797 First National Bank MEMBER FDIC 2. Except as stated herein, all bank charges are for the Applicant's account. 3. First National Bank shall replace the original of this Letter of Credit with a Replacement Letter of Credit, if such original is lost, stolen, mutilated, or destroyed prior to full drawing upon prior receipt by First National Bank of any fees charged by it and an Affidavit of Lost Letter of Credit and Indemnity, executed by Beneficiary, acceptable to First National Bank in its sole discretion any bank charges for such replacement shall be payable by the Beneficiary. 4. As a condition of the issuance hereof the Beneficiary agrees to return to First National Bank, immediately following the Final Maturity Date, the original or any reissued replacement of the expired Letter of Credit, including all amendments thereto, if any,which remain in the possession of the Beneficiary. First National Bank engages with Beneficiary that all drafts drawn and documents presented in compliance with the terms of this Letter of Credit will be duly honored by First National Bank by payment of the amount demanded if presented to First National Bank, Rancho Santa Fe Branch prior to 1:00 P.M., on or before the Expiration Date hereof, or any automatically extended expiration date prior to 1:00 P.M. on the Final Maturity Date. If any instructions accompanying a drawing under this Letter of Credit request that payment is to be made by transfer to an account with us or at another bank, we and /or such other bank may rely on any account number specified in such instructions seven if the number identifies a person or entity different from the intended payee. Except as expressly stated otherwise herein, this undertaking is not subject to any condition or qualification, and this Letter of Credit cannot be modified or revoked without the consent of both First Bank and the Beneficiary hereto. Upon payment to Beneficiary of the draft amount of this Standby Letter of Credit, First National Bank shall be fully discharged on its obligation under this Standby Letter of Credit and shall not thereafter be obligated to make any further payments under this Standby Letter of Credit. This Letter of Credit sets forth in full the terms of the engagement and undertaking between First National Bank and Beneficiary and such engagement and undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein other than Publication ISP 98 (as defined below)or in which this Letter of Credit is referred to or ` to which Letter of Credit relates and any such reference shall not be deemed to incorporate herein by reference any document or instrument. This Letter of Credit is the individual obligation of First National Bank and is in no way contingent upon reimbursement with respect thereto or upon First National Bank's ability to perfect any lien, security interest, or any other reimbursement. E This Letter of Credit is subject to and governed by the International Standby Practices 1998 0 (ISP98)as issued by the International Chamber of Commerce and the laws of the State of California 9 First National Bank fi"fs Richard Nan de, Sr. Vice President/Chief Credit Officer P.O.Box 2388 Rancho Santa Fe,California 92067 phone(858)756-3023 fax(858)756-5797 Preserve Golf Co/Calise Dev Subdivision Assignment AGREEMENT #4814 R20984, 6-16-04 .Recording Requested By: When Recorded Mail To: Ms. Valan Calise 790 N. Mission Road Palm Springs CA 97762 Space dbove For Recorder's Usv On A, ASSIGNMENT AND ASSUMPTION OF SUBDIVISION IMPROVEMENT AGREEMENT This Assignment and Assumption of Subdivision improvement Agretmem ("Assignment") is entered into effective as of May aL:j, 2004, by and between PRESERVE,, GOLF COMPANY, LLC, a California limited. liabili:y company ("Assignor"), and CALISL DEVELOPMENT, LLC, a California limited liability carripany("Assignee"). RECITALS A. Assignor and the City of Palm Springs (the "City") entered into a Subdivision Improvement Agreement dated as of December 30, 2003 (the "S1 Agreement") relating to the development of Tract 28966. Asset forth in the SI Agreement, Assignor has agreed to construct and install certain improvements to accommodate the development of Tract 28966. Pursuant to Section 4.l(a) of the Sl Ageement and Assignor has provided the City with a Letter of Credit in the amount of Eight Hundred Sixty-Seven Thousand Eight Hundred Fifty Dollars & 00/100 (5867,950.00) as security for the Assignor's faithful performance of the work required under the SI Agreement , a copy of which is attached here to as Exhibit "A" and fully incorporated herein by this reference. Assignor now desires to assign to Assignee, without representation or warranty, all of Assignor's rights, titles, interests, benefits, privileges, claims, duties, and obligations pursuant to, contained within and in aceordonce with the Sl Agreement. B. Assignor and Assignee have entered into a purchase and sale agreement whereby Assignor is selling to Assignee the real property which s controlled by the SI Agreement. C. Now, therefore, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agree, warrant and promise as follows; ASSIGNMENT AND ASSUMPTION I. Assignor hereby irrevocably and unc)nditionally grunts, transfers, conveys, assigns and delegates to Assignee of all of Assignor's rghts, titles, interests, benefits, privileges, claims, duties and obligations arising under, contained within or in respect to the $I Agreement. 2. Assignor hereby represents and warrants to Assignee that to the best of Assignor's actual knowledge (i) no default exists or has been timely asserted by either party under the 51 Agreeineilt, (Li) no event exists which, with the passage of time and expiration of any applicable noticc cure period, would cunstitute or lend Lo a matcncl defaulL, and (ui) the SI Agreement is in Page I I &A full force m effect, The knowledge of Assignor is lighted to tite actual personal knowledge of William H. McWethy, Jr., or Fred Grand based on wrMen notice from the City of Palm Springs, 3. Assignee hereby fully accepts the foregoing assignment and unconditionally assumes and agrees to perform, in a timely manner, all of the duties and obligations of Assignor arising under or contained in the SI Agreement with the same force and effect as if Assignee had initially executed the SI Agreement as the Subdivider,,as that term is used in the SI Agreement. Assignee agrees and acknowledges that upon execution of this Assignment Assignee shall become the Subdivider under the SI Agreement. 4, After execution of this Assignment by all parties, and subject to Assignor's representation in Paragraph 2, above, Assignor shall have absolutely no obligation to Assignee and shall have no liability of any nature under the SI Agreement. In this regard, Assignee, for itself and for its members, agents, employees, predecessors, successors, assigns, agents, and all other persons or entities who may claim through it, does hereby release and forever discharge Assignor and its respective members, managers, oilioers, shareholders, partners, directors, employees, agents, lenders, attorneys, successors, assigns, and related and/or affiliated parties, from any and all manner of action, suit, lien, damage, expense (including attorneys' fees), claim or demand of whatever nature heretofore or hereafter arising out of, related to, connected with or incidental to the real property identified in. the Sl Agreement or to the SI Agreement itself, except for a breach of Assignor's representation in Paragraph 2 above. Notwithstanding the foregoing to the contrary, Assignor and Assignee ackiowledge that Assignor shall be retaining two (2) lots which are within the real property (the "Project") which is subject to the SI Agreement. Assignee acknowledges that as part of the agreement between the parties, Assignee shall be solely responsible for all performances and costs of the Subdivider under the ST Agreement. Assignor agrees that to the extent it is necessary for the development of the Project in accordance with the terms and provisions of the SI Agreement, Assignor shall cooperate with Assignee. 5. In addition to the specific release set forth in Section 3, above, and subject to Assignor's representation in Paragraph 2, above, Assignee agrees that it will file no actions, petitions or complaints (administrative or judicial) against Assignor with regard to any facts or actions arising out of the Sl Agreement. It is specifrdally agreed that the agreement contained herein is a full and final release of any and all claims of demands by Assignee and for any claims related to any matter arising from or related to the Sl Agreement, except for a breach of Assignor's representation in Paragraph 2, above. 6. Waiver of Civil Code Section 154. California Civil Code Section 1542 provides: A GENERAL RELEASE DOES NOT FXTFNT) TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW DR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN EY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR. Page 2 164, s • Assignee knowingly and voluntarily waives the provisions of Civil Code Section 1542 and any other comparable provisions or principles of state, federal or common law and acknowledges and agrees that this waiver is an essential and material term of this Assignment and the release provisions contained herein and that, without such waiver, this Assignment would not have been entered into. Assignee understands and acknowledges the significance and consequences of the release set forth herein and this specific waiver of Civil Code Section 1542 and all other comparable provisions or principles of state, federal law or common law. Assignee's initigls 7. Assignee acknowledges tbat Assignee is fully and completely familiar with the terms of the SI Agreement and that Assignee would npt have entered into this Assignment if it had not fully and completely satisfied itself with the terms of the SI Agreement and the real property it affects. The assignment of the SI Agreement under this Assignment is in no way intended(and in no way implies) to change any of the terms of the purchase and sale agreement between the parties or is it intended to imply that Assignor is making any warranty or representation (except as set forth expressly in Paragraph 2, above), to Assignee or that any of the improvements contemplated by the SI Agreement may be accomplished or are feasible. 8. Assignee acknowledges that the SI Agreement references, contains and imposes upon Subdivider certain obligations in regards to bonding, credit arrangements and performance of improvement obligations. Assignee understands the foregoing obligations, and warrants to Assignor that Assignee has the capacity and ability to make all performances required of the Subdivider under the SI Agreement or bear the consequences thereof. This Assignment shall not be effective in full until Assignee has replaced all of the bonds and/or any other credit, payment or performance obligation of the Subdivider under the SI Agreement. Assignee realizes that Assignor will be substantially harmed by Assignee's failure to have any of Assignor's bonds or any of the other financial guarantees or deposits described in the Sl Agreement released by the date of the close of the escrow for the sale of the real property which is subject to the terms of the SI Agreement. Therefore, Assignee reaffirms and roacknowledgcs that the failure or inability of Assignee to replace the bonds and/or any other financial obligation related to the real property to which Assignor is a party or an obligor is a non-curable breach of the purchase agreement between them, and Assignor has the right to terminate the purchase agreement, the escrow and the sales transaction, and to immediately exercise any rights of Assignor thereunder. Time is specifically of the essence for the performance set forth in this provision, and there shall be no extension of time for any reason unless agreed to in writing by the Assignor. 9. This Assignment may be executed in one or more counterparts, each and all of which shall be deemed an original, and all of which taken together shall constitute but one agreement. True and correct copies, including electronic and facsiinile copies may be used in lieu of an original. 10. Time is of the essence. This is the entire agreement between the parties in regards to the subject matter contained herein. This Assignimrent shall be interpreted under the laws of the State of Califomia. All of the patties hereto have been represented by legal counsel of their Page 3 choice are not relying on any statement of the other party in entering herein. Each party has cooperated and participated in the drafting and the preparation of this Assignment. Hence, in any construction to be made of this Assignment, no ambiguity shall be resolved against any party by virtue of that patty's participation in the drafting of this Assignment. 11, In the event legal action is commenced to enforce the terms of this Assignment, the prevailing party shall be entitled to their reasonable attorneys' fees and court costs. 12, The parties acknowledge that the City of Palm Springs is not a party to this Assignment and the SI Agreement does not require the consent of the City of Palm Springs to an assignment. However, if the City of Palm Springs makes any requests in the future relating to the SI Agreement, the parties agree to cooperate therewith, and to take action necessary to effectuate the purpose of this Assignment. 13. If any provision, section, paragraph, clause or sentence in this Assignment is declared to be illegal, void, invalid, or unenforceable by a court or other authority with jurisdiction thereof, the remaining provisions., paragraphs, clauses, and sentences shall be severable and shall remain in full force and effect. The parties agree that a void or invalid paragraph, clause or provision shall not affect the validity or enforceability of the remaining provisions of this Agreement. 14. Except for breaches of Assignor's representation contained in Paragraph 2, above, Assignee agrees to indemnify, defend, and hold harmless Assignor and its respective members, managers, officers, shareholders, partners, directors, employees, agents, lenders, attorneys, successors, assigns, and related and/or affiliated parties from and against any and all claims, liabilities, losses, damages, causes of action and obligations arising out of or related to the S1 Agreement. Said indemnity obligation shall apply to personal injury, death, property damage, economic loss and any other monetary damage or penalty to which Assignor may be subjected, including without limitation, reasonable attorneys' fees and costs. Such indemnity shall not extend to any loss resulting from Assignor's gross negligence or willful misconduct, The foregoing indemnity shall survive the transfer of the real property and the close of the escrow therefor. Assignor agrees to indemnify, defend and hold harmless Assignee and its respective members, employees, agents, lenders, attorneys, successors, assigns and related and/or affiliated parties From and against any and all claims, liabilities, losses, damages, causes of action and obligations arising out of or related to the breach of Assignor's representation contained in Paragraph 2, above. 15, This Assignment contains the entire agreement between the parties hereto, and the terms of this Assignment are contractual and not merely recital. Any amendment to this Assignment shall not be valid or binding unless in writing and executed by each of the parties hereto. 16, By her signature below, Valarl Calise, an individual, hereby agrees to unconditionally guarantee, and to be personally liable for, all of Assignee's covenants and obligations under this Assignment and under the 5I Agreement, and further acknowledges that Page 4 ) 6 /4 7 Assignor would not have executed this Assignment (or the related sale documentation) without this personal undertaking of Valari Calisd. IN WITNESS WHEREOF, Assignor, Assignee and Valari Calise have executed this Assignment effective as of the day and year first above written. "Assignor" Preserve Golf Company, LLC, a California Limited Liability Company By: wd Name: WILLIAM H. MCWETHY, JR. Title: PRESIDENT "Assignee" Calisd Development, LLC, a California Limited Liability By & . L� - Valari Calisd, its Sole Member J Valari Calise, an Individual Page 5 STATE OF CALIFORNIA ) COUNTY OF SAN DIEGO On May 27 2004, before me, Sus4n E. Dorin a notary public in and for said state,personally.appeared William H. McWethy,F J�. personally known to me (or proved q(me on the basis of satisfactory evidence)To be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person, executed the instrument. WITNESS tiny hand and official seal. Vim& ""ler►r Cleoo�w 1�II Signature ^� YL MYCbnzBahtr11.�06 STATE OF CALIFORNIA ) COUNTY OF _/91Vt95t,&9 ) SS. On JC.tnd. Z- ' 2004,before me, Ph-re rerA A , Me 1446 ! a notary public in and for said state,personally appeared UAl-a c i C!4 c. ,r personally known to line(or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person, executed the instrument. WITNESS my hand and official seal. PATRICIA A. MC HUGH Signature: pat,iCC,t C' N .+e - C,mm,A 1276449 N ,� 11APPU@000AVFORNIA r 7/ S+n 01,90 County rNCamm,Expnea Sep 17,2M4 L Page 6 t,r 1 JUN-14-404 nuN 12:38 PM CITY OF PALM SPRINGS FAX NO, 760 322 8325 P. 09 BOND NO. 195755 • ISSUED IN QUADRUPLICATE CITY OF PALM SPRINGS FAITHFUL PERFORMANCE BOND WI JFRt A'S, the City Council of the City of Palm Springs, State of California, and Preserve Calf Company, LLC, a California Limited I-lability Company (hereinafter designated as "l 4weloper'.) have entered into an agreement whereby Developer agreed to install and complete coilain designated public improvements, which said agreement, dated January 7, 2004, and idr nfificd as Troct Map-.(jl,�,-. Q9�5 is hereby referred to and made a pail hereof; and lNI-IERFAS, Developer and Calise Development, LLC, a California Limited Liability Conrlrany (Hereinafter designated as "Principal") have entered into an Assignment and Assurnl:qiou of Subdivision Improvement Agreement,which said agreement, dated May 27. 2004, is he c!by refen ed to and made a pact hereof; and WI'ILRf:;AS, Principal is required under the terms of said agreement to furnish a bond for the faithful performane; of said agreernent. NOW, THERI FORE, we, the Principal and American Contractors Indemnity,Company as Surety, are held firmly bound unto the City of Palm Springs, (hereinafter called "City!'), in the pc;n l sum of Frye hlunrtred Twen�Thousand and Of)/100 dollars ($520(?00.00) lawful money of the Uniled States, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, successors, executors and administrators, jointly and severally, firmly by these pre "-;nt The condition of this obligation is such that if the above bounded principal, his or its heirs, executor:., admini,Uainrs, successors or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions and provisions in the said agreement acid any alteration thereof made as therein provided, on his or their part, to be kept and performed at the time and in the manner therein specified, and in all respects according to their hire intent and meaning, and shall indemnity and save harmless the City of Palm Springs, its officers, agents and employees, as therein stipulated,then this obligation shall become null and void; olherwise it shall be and remain in full force and effect. As a part of the: obligation secured hereby and in addition to the face amount specified therefor, there shall be included costs and reasonable expenses and fees, including reasonable ai.loro ejs, fees, Incurred by the City in successfully enforcing such obligation, all to be taxed as co:as and included in anyjudgment rendered, The Surety hereby stipulates and agrees that no change, extension of lime, alteration or addition to the terns of the agreement or to the work to be performed thereunder or the e;perificalinns accompanying the same shall in anywise affect its obligations on this bond, and it tor,>s hereby waNe notice of any such change, extension of time, alteration or addition to the lerrns of the agreement or to the work or to the specifications. JUN-14-2004 MON 12:38 PM CITY OF PALM SPRINGS FAX NO, 7B0 322 8325 P. 10 Pc)fforni utce Bond Page 2.. IN WITNFSS WHEREOF, this instrument has been duly executed by the Principal and Surety above named, on__June_ 14 ,__, 2004, f-'RINCIPAL. Calise Dovolopment, L LC, a California Limited Liability Company Signnhire Name and Title Valari Calise,Member SURIFTV A m,rlccan Contractors Indemnity Company V F3 7 1 y' Signature Marcia D. Smith, Attorney in Fact N:arne and Title T (All Signatures Shall Be Notarized) Page 2 of 2 CALIFORNIA Slate of CAI,IFORNTA County of RIVERSIDE, On JUNE 14 2004 before me, DONA T RT F4STNr' _p1C1TARV Dn17T Tn Date Name and Title of olrcer(e g.,'Jane Ooo,Notary Puhlic') P personally appeared MARCIA D. SMITH Name(s)of Sgner(a) ' 7 personally known tome— OR —❑proved to me on the basis of satisfactory evidence to be the person(Eq whose names) is/XX subscribed to the within instrument (( and acknowledged to me thaktp/sheAkW executed the \ same ir-Wits/her/tbut authorized capacily(ies), and that by X-Ys/her/Xiek signaturel§) on the instrument the person(s), or the entity upon behalf of which the person) acted, �•= = �m , �✓� �I executed the instrument. WITNESS my hand and official seal. Signature of Notary Public — OPTIONAL ( Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: BnNn Document Date: h 1 4 /n4 Number of Pages: 2 Signer(s) Other Than Named Above: VAIERT _AT TSB' Capacity(fes) Claimed by Signer(s) Signer's Name: MARCIA D- SMTTA Signer's Name: ❑ Individual ❑ Individual ❑ Corporate Officer ❑ Corporate Officer 'itle(s): Tlle(s): El Partner—❑ Limited ❑ General ❑ Partner—❑ Limited ❑ General i XX$ Attomey-in-Fact Cl Attorney-in-Fact ❑ Trustee ❑ Trustee 1 ❑ Guardian or Conservator iH• ❑ Guardian or Conservator r Cl Other: Tap or thumb here ❑ Other: Top or thumb here t Signer Is Representing: Signer is Representing: AMER]-CAN CONTRACTORS INDE NITY CO a 11H Nulontl Noury mixicion 1 I ng Almmrt Am,PA,AoN ilitl a Cmopa Puke CA tl7Wdif4 Pradr No,Igor Rrordm Call Totl•Fn+i,504-01Hj27 American Contractors Indemnity Company 9841 Airport Blvd.,9"' Fluor Los Angeles,California 90045 POWER Or ATTORNEY KNOW ALL INIEN BY THESE PRESENTS: "I liar American Contractors Indcinnity Company of the Stale of Cali fomia,it California corporation, does hereby appoint, George C. Faletto or Marcia 1).Smith of La Quiuta,California its true and hMIII Atloincv(s)-in-Fact, with full authonly to CvCCntC on its belhalf bond,, undenakmgs,recoIgnizances and other conlrach of indcnmuy and sviongs obhgntory m the nalurc thereof- issued in the course of its business and to bind the Company lheicb), in an Anamnt not Iu C.v000d S ``' 1,500,000-0W "Dollars '['his Posner of Attorney shall expire ssithoul further action on Match 18.2007. This Posner of Attorney is granted and is Signed and sealed by facsimile under and by the authority of the following Resolution adopted by the Board of Directors of AMERICAN CON I PAC IORS INDEMNITY COMPANY at a meeting duly called and held on the 0"' day of December, 1990. "RESOL I'L'U that lm Chiel Esecuove Office" President ut not Tice President, Elect tile Tice President,.Sectctrn t ut:'s.sl.flum Sect enu v,oludl have the power and authurin' 1. To nppuint.luorner(+9-a-Fact and to cmdmrire them to execute an behall of the C'ompeno, and attach the seal of the Company therein, bonds and undo takings,contracts ofindenvnn and other wital"s obligamrr ut the mane that eofand. _. To remove,at inn tmic,(gvsuch Attorne)-in-Fact mul revoke the utahoritrgiven RESOLVED FURTHER, that the signaaaes ol'such officers and the seal of the Compton oar be afzed to am such Pocret of Attwnei or certfcate I elating thereto hp lacninole, and an.v such Parer of Atlornev or certificate bearing such lacvnule vgnatia as of facsonde seal shall be valid and binding upon the Compmrn and air such pourer.so executed and certified by lacsimile signatinrs and fae.win le seal shall be valid and bueding upon the Compmo In the f ltiar with respect to min bond or atdertalnng to which it is attached." IN WITNESS WHEREOF, American Contractors Indemnity Company has caused its seal to be affixed hereto and executed by its Chief Executive Officer on the 15"i day of December,2003. �oaS�CTO�,,yo AMERICAN CQNTRACTORS INDEMNITY COMPANY 5 IIII I.2 P.AIED 0 SEPT.2Q 1990 BY �y g Robert F.Thomas,Chicf Executive Officer STATE OF CALIFORNIA •G(IF9Rt>�'• § COUNTY OF LOS ANGELES § On this 15°i day of December 2003, before me, Deborah Reese, a notary public, personally appeared Robert F. Thomas, Chief Executive Officer of American Contractors Indemnity Company, to me personally known to be the individual and officer described herein, and acknowledged that he executed the foregoing instrument and affixed the seal of said corporation thereto by authority of his office. WITNESS my hand and official seal. fm80RAH REES� / // Commfufort A 1406149 —6 /(?,X ✓ie6c _� Notary Public-CaAlomla �y Signature of Notary Los Angeles County My Commission expires March 18, 2007 My Comm.Expires Mart 8,2007 I, Jeannie J. Kim,Corporate Secretary of American Contractors Indemnity Company, do hereby certify that the Power of Attorney and the resolution adopted by the Board of Directors of said Company as set forth above, are true and correct transcripts thereof and that neither the said Power of Attorney nor the resolution have been revoked and they are now in full force and effect IN WITNESS HEREOF, I have hereunto set my hand this day of 200_ �/111M10 A in, opI ryJeann J. K Agency No. 420?2 R,v ran12115r03 JL , 19 Lm iiujx 12-3y rn G11Y Ur PALM aPRINGS FAX NO, 760 322 8325 P. it Bond No. 195755LM • ISSUED IN QUADRUPLICATE CITY OF PALM SPRINGS LABOR AND MATERIALS BOND WHEREAS,the City Council of the City of Palm Springs,State of California,and Preserve Golr Company, I-t-C., a California Llmisd Liability Comperny (hereinafter designated as "Developer") have entered into an agreement whereby Developer agreed to install and complete ceilain designaled public improvements, which said agreement, dated January 7, 2004, and iclenlified os Tract Map No_2896 , is hereby referred to and made a part hereof; and 1N1lEREAS, Developer and Calise Development, LLC, a California Limited Liability Company (hereinafter designated as "Principal") have entered into an Assignment and Assumption of Subdivision Improvement Agreement,which said agreement, dated May 2/, 2004, is he.reLy referred to and made a part hereof, and WHEREAS, under the terms of said agreement, Principal is required before entering upon the performance of the work, to file a good and sufficient payment bond with the City of Pali'o springs to secure the claims to which reference is made in Title 15 (commencing Willa Section 3082) or Part 4 of Division 3 of the Civil Code of the State of Califomia. NOW, TitEREPORE, Principal and the undersigned as corporate surety, are held firmly bound unto the City of Palm Springs and all contractors, subcontractors, laborers, materialmen and other persons employed In the performance of the aforesaid agreement and referred to in the afore:.aid Civil Code in the sum of Two_Hundred Sixt Thousand and 001100 dollars (j lGD,ODD.00}, for materials furnished or lab th or ereon of any kind, or for amounts due under the IJneniployment Insurance Act with respect to such work or labor, that said surety will pay the same In an amount not exceeding the amount hereinabove set forth, and also in case suit is brought upon this bond, will pay, in addition to the face amount thereof, costs and reasonable expenses and fees, including reasonable attorney's fees, incurred by the City in successfully enforcing such obligation, to be awarded and fixed by the court, and to be taxed as costs and to be included in the judgment therein rendered. It in hereby expressly stipulated and agreed that this bored shall inure to the benefit of any and all persons, companies and corporations entitled to fife claims under Title 15 (commencing Willi Section 108?_) of Part 4 of Division 3 of the Civil Code, so as to give a right of action to them or their assigns in any Suit brought upon this bond. Should the condition of this bond be fully performed, then this obligation shall become null and void; otherwise it shall be and remain in full force and effect The surety hereby stipulates and agrees that no change, extension of time, alteration or addition to Ilse terms of said agreement or the specifications accompanying the same shall in any manrtor affect its obligations on this bond, and it does hereby waive notice of any such change, extension, alteration or addition. JUN-14-2004 MON 12:39 PM CITY PALM SPRINGS FAX NO, 760 322 8325 P. 12 Lahor and Materials Bond Pago 2 IN WI1`NFSS WHEREOF, this instrument has been duly executed by the Principal and Surely above named, on June 14„ 2004. PRINCIPAL C ilr;ar Dow.,lopmeril, LLC, a California Limited Liability Company :'signature py; VALARI CALISE, MEMBER Name and Title ^� sum;'(Y Arne:ricun Contractors Indemnity Company J,. By, -- f,. Signature E3y: „ gCZA, H,,_ ATTORNEY IN FACT Narne and Title (All Signatures Shall Be Notarized) CALIFORNIA ALL-PIIRPOWCKNOWLEDGN7ENT Slate of CALIFORNTA County of RIVERSIDF On JUNE 14 , 2004 before me, DONA T RTF4STNr, , NnTARV DIIRTT(' , Dato Nama and Title of Officer te.g,'Jane Doe,Notary Public') personally appeared MARCIA D . SMITE , Names)of Signers) )1Z] personally known to me— OR —❑ proved to me on the basis of satisfactory evidence to be the person(Q whose name(s) islxR subscribed to the within instrument and acknowledged to me thaVhpii executed the OVHOA] SEALI,; same in r authorized capacity(ias), and that by ;l �.,,•��<•�. c�lr�s L. s�assd!ea� lt� HTYs/her/MT`�Fti signalurel§) on the instrument the person(X), z 'o—YPu'�ti Califon oy or the entity upon behalf of which the personO anted, �w 16c��„°;¢+ °I IvoVERSu>3ite-raluiaTY 1�;� fi ✓ tc "��j I executed the instrument. <d ,, ,"Jry Corcrrniosron Expires Ai RiL 22,2007 " W -,"''� "` `� ° `( WITNESS my hand and official seal. �� Signaiure of Notary PU�IIc -- OPTIONAL Though the information below is not required by law,it may prove valuable to persons relying on the document and could prevent 1 fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: unNn Document Dale: h, 1 4 Z04 Number of Pages: 2 Signer(s) Other Than Named Above: HAT ERT rrT TSE t Capacity(ies) Claimed by Signer(s) Signer's Name: MARCTA D. SMTTu Signer's Name: ❑ Individual ❑ Individual ❑ Corporate Officer ❑ Corporate Officer Title(s): Tftle(s): ❑ Partner—❑ Limited ❑ General ❑ Partner—❑ Limited ❑ General XXX Attorney-in-Fact ❑ Attorney-in-Fact ❑ Trustee ❑ Trustee ❑ Guardian or Conservator ❑ Guardian or Conservator �• f ❑ Other: Top of Ihum6 Here ❑ Other: Top of thumb here Signer is Representing: Signer Is Representing: AMERICAN CONTRACTORS INDELNITYCO 91114 HiDanil Natery Malilim r 911 RI Mlill AV6t RC,Cat 71M r Giffin Pull,CA 11390,7114 Prod,Na,Dial Ri ftdir Cln T91-Frn t 1W-076-01a7 American Contractors Indemnity Company 9841 Airport BIN d.,9n' Floor Los Angeles,California 90045 POWER OF ATTORNEY KNOW ALL MEN 13Y TI-IESE PRESENTS That American Contractors Indemnity Company of the State of California,a California corporation, does hereby appoint, George C. Faletto or Marcia D.Smith of La Quinta,California its hUC and km fill Attorneys)-m-fact, with full authority to execute (ill its bQ11alf hoods, undertakings, reeognizances and other contracts of inclenmity and writings obligalory in the nalurc thereof', issued in the cow se of its business and to bind the Company theieb�. in an .Amount not to cxcecd 1,500,000 O(1 Dollars Thr< Posver of Attorney shall expire v ithout furlhcr action on March 18, '_007 This Powcr of Attorney is granted and is signed and wooled by facsunile under and by the authority orthe following Resolution adopted by the Board of Directors of AMERICAN CONTRACTORS INDEMNITY COMPANI at a meeting duly called and held on the 0"i day of December, 1990. "R6S0L1'ED that the Chief Erecuth e Officer, President or unr l7cc Pr esalea, Elecurnc I rue President,Secretary ar daystanr Scctt7ar_r..Jm/I here die poem andatrdtar in 1, To appoint Attorner(s)-m-Fact and to authortze them to erecuic on behalf of the Conrpagr, and attach the seal of the Conrpagr droeto, bonds and undertakings, contracts of indeinian and other lvnangs obligaton,m the naauc timeofand, 2 To remove, at ani time,aqr such Ationrer-in-Fact cod revoke the anthoriti,�,n en RESOLVED FURTHER, that the signngmes of such officers and the seal of the Conipmn mai be affixed to am such Pmrei of Attornev ar certificate relating thereto by firconrile, mid aar such Poorer ojAuornev w'certificate bemurg such f resaaile aigmgm es or;facsimile seal shall be valid and binding upon the Conrpagr and mll'such prover so erecutel unrl core tified by facsimile srgnnarres and facsinrle seal shall be valid and binding upon the Compam, in dre fuaar irgh respect to aim bond of undei taling to irhrch a is attached." IN WITNESS WHEREOF, American Contractors Indemnity Company has caused its seal to be affixed hereto and executed by its Chief Executive Officer on the 15°i day of December.2003. CTORfyQ AMERICAN CONTRACTORS INDEMNITY COMPANY 3 IN(BRPORAIED ? � g; dEPi 2d,1990 � BY �y o Robert F.Aom,'Is,Chief Executive Officer STATE OF CALIFORNIA •G(IFORt '• § COUNTY OF LOS ANGELES $ On this L`r°i day of December 2003, before me, Deborah Reese, a notary public, personally appeared Robert F. Thomas, Chief Executive Officer of American Contractors Indemnity Company, to me personally known to be the individual and officer described herein, and acknowledged that he executed the foregoing instrument and affixed the seal of said corporation thereto by authority of his office. WITNESS my hand and official seal. DE- - REESE // Commission Y 1406149 Notary Public-Calilomta Signature of Notary Los Angeles County My Commission expires March 18, 2007 My Comm.ExpVes Mar 18,2007 1,Jeannie J. Kim,Corporate Secretary of American Contractors Indemnity Company,do hereby certify that the Power of Attorney and the resolution adopted by the Board of Directors of said Company as set forth above, are true and correct transcripts thereof and that neither the said Power of Attorney nor file resolution have been revoked and they are now in full force and effect. IN WITNESS HEREOF, I have hereunto set my hand this day of�� 200_ / IonuMio / 1 �� Jeaarm J. Kim,Co porate Secretary Agency No. R2022 Rvv.PON Ili 15103 JUN`14--2004 MON 12:30 PM CITY OF PALM SPRINGS FAX NO, 760 322 8325 P. 13 Bond No . 195755WT ISSUED IN QUADRUPLICATE CITY OF PALM SPRINGS E30ND FOR MAINTENANCE AND WARRANTY OF IMPROVEMENTS WHFRr-AS, the City Council of the City of Palm Springs, State of California, and Preserve Golf Company, I.LC, a California Limited Liability Company (hereinafter designated as "Developer") have entered into an agreement whereby Developer agreed to install and complete certain di,,lgnated public improvements, which said agreement, dated January 7, 2004, and idea lified as-1 rnct Map No_28966, is hereby referred to and made a part hereof; and WHEREAS, Developer and Calise Development, LLC, a California Limited Liability C:owpany (hereinafter designated as 'Principal") have entered into an Assignment and A! �trmphon of Subdivision Improvement Agreement,which said agreement, dated May 27. 2004. is henihy referred to and made a pact hereof, and WI.1f=Rf.:AS, Principal is required under the terms of said Agreement to maintain and yuar'ru'ilera the WMS or repair and/or replacement of defective materials or defective workmanship in such improvements, which guarantee shall remain in effect for a period of one (1) year from date of acceptance of work by the City of Palm Springs (hereinafter called "City'), .nut to furnish a bond for the faithful performance of said Agreement and the payment of all coil tr',i dors, subcontractors, laborers, materialmen, and other persons employed in the performance of any such maintenance and warranty work. WI-Ii-REAS, Piincipal has completed said work and the City has accepted, or suhsiardiaily concurrently herewith is accepting, said work, subject to the requirement of delivery of this obligation. NOW THEREFORE, we, the Principal, and American Contractors lndemnity ,Com an , as Surety, are held and firmly bound unto the City, and all contractors, subcontractors, laborers, m,aterlalrnen, and other persons employed in the performance of the aforesaid Agreement, for one (1)ycarfrom and after the date of completion and acceptance of said work, in the penal sum of evr:rdy flit Thousand anti 001100 dollars ($78 000 DO), lawful money of the United States, for replacement and repair of any and all defective materials or defective workmanship within said irnprovorients, and the payment of all materials furnished or labor thereon of any kind, or for amounts due under the Unemployment Insurance Act with respect to such work or labor in connr,,,;Iion with any such maintenance or warranty, that said surety will pay the same in an nmounl not exceeding the amount hereinabove set forth, for the payment of which sum well and truly to be made, we biird ourselves, our heirs, successors, executors and administrators, jointly and severally, firmly by these presents. It is hereby expressly stipulated and agreed that this bond shall inure to the benefit of any and all persons, companies and corporations entitled to file claims under Title 15 (commencing wilh Section 3062) of Part 4 of Division 3 of the Civil Code, so as to give a right of action to them or their assigns in any suit brought upon this bond. The condition of this obligation is such that if the above bonded Principal, his or its heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by, and Well and truly keep and perform the covenants, conditions and provisions in the said Agreement respecting the repair and replacement of defective workmanship and materials thereof made as therein provided, on his or their part to be kept and performed at the time and in the manner theroin specified, and in all respects save harmless the City of Palm Springs, its officers, agents JUIJ'14-2004 MOW 12:40 PM CITy_OF PALM SPRINGS FAX NO. 760 3228325 P, 14 Maintenance & Warranty Bond P clo 2 and omployees, as therein stipulated, then this obligation becomes null and void; otherwise R shell be and nm1'n3in in fell force and effect. As a part of the obligation secured hereby and in addition to the face amount specified therefor, there shall be included costs and reasonable expenses and fees, including reasonable ,.Aomeys fees, incurred by the City in successfully enforcing sru;h o'bllgati( ro, all to be taxed as costs and included in anyjudgment rendered. 'ilic sutra hereby stipulates and agrees that no change, extension of time, alteration or addition to tha teirns of the Agreement or to the work to be performed thereunder or the specifications accompanying the same shall in anyway affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the tconr of Llie Agreement or to the work or to the specifications. IN WITNESS WFIp.R2EOF, this instrument has been duly executed by the principal and Skit uty above named, on.1l .__{:yam, 2004. FIRINC1PAL Calis.0 Davelopmenl, LI_C, a California limited Liability Company JJ By -Signattua 13y l/t11L05fJ /?d✓'(i Name and Titfo SI,IRFiTY Amoricaan Contractors Indemn ityConpany Signature 13y: .'��tJi£' �_.._ :_. ?1� Ory, ✓O/� Jam// Name and Title (All Signatures Shall Be Notarized) CALIIFORkIA ALGlIRURP4 ACKNOWLEDGMENT State of CALIFORNIA Counlyof RIVERSIDE On SUNE 14 , 2004 before me, DONA T RT FS4TN(;� NOTARY 1?I7RTT(' , Dal. Nam.and T.Va of Olfcer(..p,'Jane Do.,Nolary Public') P personally appeared MARCIA D . SMITH Nam.(5)of&Vp 1e1 7 personally known to me—OR—❑proved to me on the basis of satisfactory evidence to be the person(gk whose name(s) is/XH subscribed to the within instrument and acknowledged to me thaVbp/sheigkgy executed the same it Rs/hel authorized capacity(ies), and that by n tit N&1her/kMk signature) on the instrument the person), oc" or the entity upon behalf of which the person(X) acted, at tt v, 1 M executed the instrument. �i WITNESS my hand a . official seal. �r \_ Signature of Nolary Pubbc OPTIONAL a�• l Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent t fraudulent removal and reattachment of this form to another document. Description of Attached Document 1 Title or Type of Document: RnNn Document Date: h, T 4 Z04 Number of Pages: 2 Sigmer(s) Other Than Named Above: VATRRT (2A1gE — t Capacity(ies) Claimed by Signer(s) Signer's Name: MAP(-.TA D SMT'PF Signer's Name: ❑ Individual ❑ Individual ❑ Corporate Officer ❑ Corporate Officer Tille(s): Tille(s): ❑ Partner—❑ Limited ❑ General ❑ Partner—❑ Limited ❑ General XXX Attorney-in-Fact ❑ Attorney-in-Fact ❑ Trustee ❑ Trustee ❑ Guardian or Conservator ;• ❑ Guardian or Conservator ;• t ❑ Other; Top of thumb here ❑ Other: Tap of thumb here Signer Is Representing: Signer Is Representing: AMERICAN CONTRACTORS IN NITY CO 9111A NoWil Ndnrymww9M t N9e nimmilAee,P.O.bx til4 i Girgo ForN 011991•tIM PIvd,Ng,1191 Reprdi r Call TO- M 1 199 0T4 90xT American Contractors Indemnity Company 9541 Airport 13Ivd.,9"' Floor Los Angeles,California 90045 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS: That Ammican Contractors Indemnity Company orthe State of Cahfornla,it California corporation, does hereby appoint, George C. Falctto or Marcia D. Smith or La Quinta,California its true and lira fur Auontey(s -in-Fact, with full authorlt to execute on its behalf bonds, undertakings, recognizances and other contract~ Of indenuuly and ,,mines oblonnory in the n,umc thereof', issued in the coun so of ils business and to bind the Company thereby- in an Amount not to exceed S ""`I 500,000,00,"rpollai-e, I his Posscr of Atiomcy shall expire without further action on Much 18-2007. This Power of Attorney is granted and is Signed and scaled by fscla n IC under and by the authority orthe following Resolution adopted by the Board of Directors of Ab1ERICAN CONI RACTORS INDENINIIY COMPANN at a meeting duly called and held an the 0"' day of December, 1990. "RESOLVED that Ill,,Chief Eecatne Officer. President of a,n I tic President, Ececunre I)cc Po esident,Secielo i of .assist i n Sec,Clef,r,shalllame the poi er and arahorin _ I To appoint A Ito nnel o)-in-Fact and to authonce them to esecufe on behalf of the Conipam, and aaach the seal of the Company thereto, hands and undertakings,conn tic'is of Indent lill and 011ie)rrrtnng.s obbeulory in the nano e three cofand, '. Torenim'e, at ran'time, can such A flat net-m-Fact and r evoke the autho,itv1iren. RESOLVED FURTHER, that the signatures of such office,, and the seal of the Companp into be affixed to can,such Parer of Atto, fell m-certifleare i elcaing thereto br bicsinale. and ram such Poore, ofAdorner or ce,oficcite hearing such fa(Onile signaliu-es Of facsimile seal shall be valid and binding upon are Company and am such pourer so executed and cc,tified b_r;facsomfee signatmrs mid facsrmde seat shall be valid and binding upon the Company o the future srilh respect to aqv bond o-underiahong to which if is attached " IN WITNESS WHEREOF, American Contractors Indemnity Company has caused its seal to be affixed hereto and executed by its Chief Executive Officer on the 15"'clay of December,2003. `O��OTORJ,/yo AMERICAN INDEMNITY COMPANY S INCORPORATED = B W SEP126,1990 `c y: Robert F.T comas,Chief Executive Officer STATE OF CALIFORNIA •�f § COUNTY OF LOS ANGELES § On this 15"i day of December 2003, before me, Deborah Reese, a notary public, personally appeared Robert F. Thomas, Chief Executive Officer of American Contractors Indemnity Company, to me personally known to be the individual and officer described herein, and acknowledged that he executed the foregoing instrument and affixed the seal of said corporation thereto by authority of his office. WITNESS my hand and official seal. DEBORM REESE CommMion N 1406149 ,K�U/n)✓`y c/I e Gcr� y Notary Public-Callfomla Signature of Notary Los Mgetes county My Commission expires March 18, 2007 My Comm.Exp yes Mar 18,2007 1,Jeannie J. Kim,Corporate Secretary of American Contractors Indemnity Company,do hereby certify that the Power of Attorney and the resolution adopted by the Board of Directors of said Company as set forth above, are true and correct transcripts thereof and that neither the said Power of Attorney nor the resolution have been revoked and they are now in full force and effect. IN WITNESS HEREOF, I have hereunto set my hand this day of 200_. Jcann J. Kim,Co porate Secretary Agency No. #90?2 Rcv.POA 12/15/03 JUN-14-104 U 12:41.) PN 011V Or PRLH SPRINGS FAX NO. 760 322 8325 P. 15 Bond No . 195756 • ISSUED IN QUADRUPLICATE CITY OF PALM SPRINGS BOND FOR FAITHFUL PERFORMANCE, LABOR,AND MATERIALS FOR SETTING OF MONUMENTS LVI IE REAS, the Cr+y Council of the City of Palm Springs, State of California, and Preserve Golf Company, LLC, a California Limited Liability Company(hereinafter designated as"Developer") lmve entered into an agreement whereby Developer agreed to install and complete certain desit)naled public improvements, which said agreement, dated January 7, 2004, and Identified as Tract iv)ap No. 2R�6fi, is hereby referred to and made a part hereof, and WHEREAS,Developer and Calise Development,LLC,a California Limited Liability Company (hereinafter designated as "Principal") have entered into an Assignment and Assumption of Subdivision Improvement Agreement,which said agreement,dated May 27,2004,is hereby referred to and mode a peirt hereof; and WHEREAS, said Principal is required under the terms of said Agreement to furnish a bond for the faithfril performance of said Agreement and the payment of the engineer or surveyor for the selhi u of said monuments. NCJW 7fIERFFORF, we, the Principal, and American_Contractors Indemnity Company, as surety, aro hold and firmly bound unto the City of Palm Springs (hereinafter called "City'), and all co rtrar..tors,subcontractors,laborers,malerialmen,and other persons employed in the performance of the aforesaid Agreement with respect to the setting of monuments, in the penal sum of Nine a'(Mrr;ArLcl,hight,t lundred Fib and 001100 dollars(��850 00),lawful money of the United States,Yor rnalerials furnished or labor thereon of any kind, or for amounts due under the Unemployment Insurance' Act with respect to such work or labor, and for the completion of said setting of ntonunacnis, that said surety will pay the same in an amount not exceeding the amount hereinabove ,,it forth, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, suxossors, executors and administrators,jointly and severally, firmly by these presents. It is hereby expressly stipulated and agreed that this bond shall inure to the benefit of my and all persons, companies and corporations entitled tofile claims under Title 15(commencing with Section 3082)of Part 4 of Division 3 of the Civil Cade, so as to give a right of action to them or their astiigns in any suit brought upon this bond. The condition of this obligation is such that it the above bonded Principal, his or its heirs, executors, administrators, successors or assigns,shall in all things stand to and abide by, and well and tiuty keop and perform the covenants, conditions and provisions in the said Agreement resp cling the setting of monuments and any alteration thereof made as therein provided, on his or their part to be kept and perfomaed at the time and in the manner therein specified, and in all respects according to their true intent and meaning,and shall indemnify and save harmless the City of Pairo Springs, its officers, agents and employees, as therein stipulated, and shall have provided to the City ev1dence that the engineer or surveyor,and all said contractors,subcontractors,laborers, malod3linen, and other persons employed in the performance of the aforesaid Agreement with respect to the setting of monuments, have been paid for the setting of monuments, then this obligation becomos null and void; otherwise it shall be and remain in full force and effect. JUN-14-2004 MON 12:40 PM CITY OF PALM SPRINGS FAX NO, 760 322 8326 P. 16 Mnnunx;ntallon Bond Page P. As a part of the obligation secured hereby and in addition to the face amount specified thcrofor, there shall be included costs and reasonable expenses and fees, including reasonable allorncy's fees,incurred by the City in successfully enforcing such obligation,all to be taxed as costs and included in anyjudgment rendered. Tile :surety hereby stipulates and agrees that no change, extension of time, alteration or addition to the temis of the agreement or to the work to be performed thereunder or the cprui�rsiions a,��os+�pan�r y the s;.:r,e shad in any way affect As obligations on this bond, and it d4.r�s f a'c:by r�aiva ^��it:�siOozi/ suut3 c��anr�e, ux,iensien of time, alteration or addition to lhe'ierms of the Arpaenu:nl or to the work or to the specifications. IN WITNESS WHEREOF, this instrument has been duly executed by the Principal and SUY0.1y above named, on-._.,fi e 19_...._.. 2004. PI;INCIPAI. Coli,o f)evclnpmenf, LLC, a California Limited Liability Company fly: ..... ... — Signaturi By: .VALARI CALISE , MEMBER Narile and Title^ SLINFJY Ame ricaru Cootrartars Indemnity Company y 6q,inatura MARCIA D. SMITH, ATTORNEY IN FACT Namo and Title (All Signatures Shall He Notarized) CALIFORNIA ALL-PURPU ACKNOWLIEL3Gi4➢EH-r Slate of County of RIVERSIDE On SUNE 14 , 2004 before me, nnraz, T - RrF4STN( rTmm�Rv pnRTT� D.I. Name and Llle of OTIcer(e g..'Jane Do a,Notary Publk') ' ( personally appeared MARCIA D . SMITH Nam.(s1 0l S�gnerle� ' ) n personally known tome— OR —❑ proved tome on the basis of satisfactory evidence to be the person( whose narne(s) is/aTH subscribed to the within instrument and acknowledged to me lhaklpe/shegMy executed the O loa,ars�Au same irlVs/her/tbutr authorized capacity(ies), and that by y <' a• DOs"dA L.ales XM/her/H-Mlf signature) on the instrument the personO, COF✓M/AV412913 Q) P1�xyPubltc-cali6om9n 5i or the entity upon behalf of which the person(A) acted, esJ w �._ � osvErt�aeoviv�v / executed the instrument. I', 1„�y2`n :✓ My Corm.a¢ssamn Explras r APM L 22,2007�.v.a� WITNESS my hand and official seal. Signalure of Notary Public -- — OPTIONAL `` Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent `1 fraudulent removal and reattachment of this form to another document. } Description of Attached Document Title or Type of Document: _ Romp Document Dale: F l 4 /n4 Number of Pages: 2 Signer(s) Other Than Named Above: HATERT CAT rgE t Capacity(ies) Claimed by Signers) Signer's Name: MARCIA D- SMTmF7 Signer's Name: ❑ Individual ❑ Individual ❑ Corporate Officer ❑ Corporate Officer Title(s): Ttle(s): ❑. Partner—❑ Llmited ❑ General ❑ Partner—❑ Limited ❑ General t XX$ Attorney-in-Fact ❑ Attorney-in-Fact ❑ Trustee ❑ Trustee t ❑ Guardian or Conservator ClGuardian or Conservator f ❑ Other: Tap of Ihumh here ❑ Other: Top of thumb here l Signer Is Representing: Signer Is Representing: AMERICAN CONTRACTORS INDE NITY CO 9 1114 Nl6anl0 Naary AlllnV o 1 Ulf fflllAflll Alb,PA.C04 7114 1 ClflOgl Pulp CA 9100111441 Ill Ng,6197 RlaN4n Call T* ll 1,6l American Contractors Indemnity Company 9841 Airport Blvd.,91' floor Los Angeles,California 90045 KNOW ALL. tMEN BY THESE PRESENTS: That.American Contractors Indcmnrty Company orthe State of California,a California corpomtiun, does hereby appoint, George C. Faletto or Marcia D. Smith of La Quinta, California its true and lawful Attoniey(s)-in-Fact, with full authority to execulC on its beliall bonds, undertakings, recognizances and other anuracis Of indenuiity and writings obligmory in the illoic thereof, issued in the course of its business and to bind the Company thereby, in an Amount not to exceed S "t*L500,000(IUD 'Dollius This Posner of Auorncy shall expire without further action on March 18. 2007. This Power of Attorney is granted and is signed and sealed by facsimile under and by the authority of the following Resolution adopted by tic Board of Directors of AMERICAN CONTRACTORS INDEMNITY COMPANY at a nieeting duly called and held on the 6"' clay of December, 1990. "RESOLIED that the Chief Ewcutive Oflicer. Pi csidem or ant I'icc President Evecnnre I ire Pr cvdunt. Setr-etarr ur k.sofaw Secretes i, shall hrne the you cr and aulhar ul' 1. To appoint Attmner(s)-m-Fact and to authoir_e them to eieente on behalf of the Cooipanv, and attach the seal of the Conipaur thereto, bonds aruf midertnlrings, cone acts of indenmiq,and other to lang.s obligator r ui die nature thereol mid, ? To remove,at anv time,anr such Attoinep-m-Fact and revoke the author to given RESOLVED FURTHER, that the signatures of such officers and the seal of the Compaiv niai, be affixed to anv such Power ofAttornev or certificate reladn„tins eto kvfaesin ile, mid an),such Power of Attornev at certificate bearing such facsunde signatnes at-facsimile seal shall he valid and binding upon die Compmgt and an such poises so executed and cent f ed br lacswide signatures and,fac made seal shall be valid and binding upon the Cornpanv, in the fiaw e ivah respect to any bond at undertaking to ii hich it is attached." IN WITNESS WHEREOF, American Contractors Indemnity Company has Caused its seal to be affixed hereto and executed by its Chief Executive Officer on the 15°i day of December,2003. `oa��CTORS/yo AMERICAN C NTRACTORS INDEMNITY COMPANY 5 INCORPORATEDWV 1, ?; SEPL46,1990 O L3y. Robert F.T comas,Chief Executive Officer �d STATE OF CALIFORNIA •U(1TOSt1(�'• § COUNTY OF LOS ANGELES § On this 15°i day of December 2003, before me, Deborah Reese, a notary public, personally appeared Robert F. Thomas, Chief Executive Officer of American Contractors Indemnity Company, to me personally known to be the individual and officer described herein, and acknowledged that he executed the foregoing instrument and affixed the seal of said corporation thereto by authority of his office. WITNESS my hand and official seal. — — - AII REESE CoCommissionI1 1:ESE149 Notary Pudlc-CaNlomia Signature of Notary Los Angeles county My Commission expires March I8,2007 My DEComm.EzpYes Mar18.2007 1,Jeannie J. Kim,Corporate Secretary of American Contractors Indemnity Company,do hereby certify that the Power of Attorney and the resolution adopted by the Board of Directors of said Company as set forth above, are true and correct transcripts thereof and that neither the said Power of Attorney nor the resolution have been revoked and they are now in fill force and effect. IN WITNESS HEREOF, I have hereunto set my hand this day of 200_. Joann J. Kim,Corporate Secretary Agency No. #2022 Rcv.POA 12/15/03 OB/10/2004 15 50 rAn 949 223 1180 ALESHIRE & WYNBER, LLP 16 002/002 06, 10/2004 II : Jy VAS TBo 'Q2 Palin SPrines CirY Clurl t8.1000 Assignor Would wn havc cx=vWd dt18 A1+4;1_9TIU M (01 Tire related Sale docuuwalation) witbour this pti�onal undenaking of Valarl C'aVs,6. TN WITNESS 'Wwl"1TOF, Assignor, (NssiLmec and valaii C1list; have exccuted tgts A.s5igwax eut effective Hs pCthc day and ycar ktrst above wa%M'11. Prcocrvc Golf Coaapa.ny, LLC, a Oilifomia Limited Liability Colllp Any Name: WILLI&M,,,_H. MCWLTHY, JR. Title: L.C,. CtdiO6DcvclopmenL, LLC, "li..C,: aYalitomla L1rg1tr.11 1 labltlty i Vufetll C;alis� Ics Solc Mcrnbcr � � -cvl�-`„� �>�-31(,n .,- vnlaii CaliS6, xr,Individual Pnve 5 U4"�/ Io/,":�,rtiq Illy '11 .91 ['I'7tIR;( NO CU1201 GJ,I L'�0` 08/10/2004 15 50 FAX 949 223 1180 ALESHIRE & WYNDER, LLP IA001/002 0 0 & ss1 Vmi Kmamis A,�,. Silo, IWO EOT 1�9 Irvme,CA 02(,12 A k N I A I L A W P1...ve 002 -1170 T,im 049 223.1180 FACSIMILE COVER SHEET Date: May 107 2004 Tiru(- 3:47 I'M Fih, Name: File No.: 1003,018 To Fax No. I 1'elephone No. Trisha Sanders 760323.8207 From; 'rimmy j, Israel .............. TOTAL NUMBER OFPAG'US INCLUDING THIS FORM 18: 2 Message: Attached is the signature page for the assignment agreement at: TAI 28966 ORIGINAL WRA,-- r: RE SEMI'BYMAIL I— BE SENT BY FED EN*/()V f.;RN 1(-,]ITCOURIER M SENT BYMES.';9-'N('f.k F NOT BEISCNI* r BE SENT BY E-MAIL Kall pagcsaveNot received,please gall(;vrc;�ixv A.I�r;iti�f%c,ld ui 223-1170, THIS COVER SHNFT AND ANY DOCUMENTS ACCOMPANYING IT ARE 'tNTENDED FOR THE INDIVIDUAL OR ENTITY ST..'T FORTH AS THE ADORLUME, AND MAY CONTATM INFORMATION THAT XS PRI7T=CPD ANb CONFTPENTIAL. IF YOU ARE NOT TMP, INTp:NW;D RECIPIENT, OR THE FS I.OIME On AGNNT FM'WCNSIDLE FOR DD&WERINC THE MESSACE TO THE TN'krNDED RECIPIENT, YOU ARE HEREBY NOTIFIND T"T AN!'. DISSEMINA'XION, DISTRIDUTION OR COPYING OF THIS COMMUNICATION ID STRICTLY PROHIBITED- T7 YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PT,V��IP, NOTIFY US IMMEDIATELY J1Y TELEPHONE SO THAT ARRAMUMENTS CAN BE MADF, FOR RETURNING THE ORIGINAL hrl.9lW:E TO US, THANK YOU, 100..01W(' DOC " 2004—OMS4702 03/05/2004 08:00R Fee:NC Page 1 of 32 Recorded in Official Records County of Riverside Gary L. Orso Assessor, county Clerk & Recorder I10IIIIIIIIIIIIIIIIIIIIIII III IIIIIII III IIIIIIIIIII1 `• fl'YJ"I M S �f PAGE SIZE DA PCOR NOCOR SMF MI6G C^'ex `p��( 1 `N 1 r � YL A R OPY LONG REFUND NCH[a AM SUBDIVISION IMPROVEMENT AGREEMENT I by and between I m Preserve Golf Company- CITY OF PALM SPRINGS Subdivision Agr AGREEMENT #4814 and R28966, 1-7-04 PRESERVE GOLF COMPANY, LLC A CALIFORNIA LIMITED LIABILITY COMPANY OR qp.�II�I 3 ��,{{��V,��II'i1.qp((�1 4f p� TABLE OF CONTENTS 1.Construction Obligations........................................................... 1 1.1 Works of Improvement........................................... 1 1.2 Other Obligations Referenced in Conditions of Tentative Map Approval......................................... 2 1.3 Intent of Plans........................................................ 2 1.4 Survey Monuments................................................ 2 1.5 Performance of Work.............................................. 2 1.6 Changes in the Work.............................................. 2 1.7 Defective Work....................................................... 3 1.8 No Warranty by City............................................... 3 1.9 Authority of the City Engineer................................ 3 1.10 Documents Available at the Site............................ 3 1.11 Inspection............................................................... 3 1.12 Compliance with Law............................................. 3 1.13 Suspension of Work............................................... 3 1.14 Final Acceptance of Works of Improvement........... 4 2. Time for Performance....................................................... 4 2.1 Commencement and Completion Dates................. 4 2.2 Phasing Requirements............................................ 4 2.3 Force Majeure......................................................... 5 2.4 Continuous Work.................................................... 5 a 2.5 Reversion to Acreage.............................................. 5 mM 2.6 Time of the Essence................................................ 5 3. Labor................................................................................. 5 N 0 Cl 3.1 Labor Standards...................................................... 5 3.2 Nondiscrimination................................................... 5 3.3 Licensed Contractors.............................................. 5 3.4 Workers' Compensation.......................................... 6 4. Security............................................................................. 6 4.1 Required Security.................................................... 6 4.2 Form of Security Instruments.................................. 6 4.3 Subdivider's Liability................................................ 7 4.4 Letters of Credit....................................................... 7 4.5 Release of Security Instruments.............................. 8 5. Cost of Construction and Provision of Inspection Service............................................................................... 8 5.1 Subdivider Responsible for All Related Costs of Construction............................................................ 8 5.2 Payment to City for Cost of Related Inspection i and Engineering Services........................................ 8 6. Acceptance of Offers of Dedication................................... 9 7. Warranty of Work.............................................................. 9 8. Default............................................................................... 9 8.1 Remedies Not Exclusive.......................................... 9 8.2 City Right to Perform Work...................................... 9 8.3 Attorney's Fees and Costs....................................... 9 9. Indemnity.......................................................................... 10 10 General Provisions............................................................. 10 10.1 Successors and Assigns......................................... 10 10.2 No Third Party Beneficiaries.................................... 10 10.3 Entire Agreement; Waivers and Amendments....... 10 11. Corporate Authority........................................................... 10 ii III 11111 II II �3 m0�2 of2 3 AeR of 8 SUBDIVISION IMPROVEMENT AGREEMENT THIS SUBDIVISION IMPROVEMENT AGREEMENT (this "Agreement") is entered into this 7th day of January , 2004, by and between the CITY OF PALM SPRINGS, a municipal corporation of the State of California ("CITY"), and Preserve Golf Company, LLC, a California Limited Liability Company ("Subdivider"). RECITALS A. Subdivider is the owner of, and has obtained approval of a subdivision map for Tract No. 28966 in the City of Palm Springs, County of Riverside, State of California (the "Property"). The map contains conditions of approval for the development of the Property (the "Conditions'). B. Pursuant to the Conditions, Subdivider, by the Map, has offered dedication to the City of Palm Springs Lot "A" to public use for street and public utility purposes; an easement for public utility purposes, including sewers, as shown on the map as 5' P.U.E. and 5' sewer easements; an easement for public utility purposes, including sewers, with the right of ingress and egress of service and emergency vehicles and personnel over Lot `B"; a dedication of Lot 18 for open space and conservation purposes, including all rights, title and interest thereto; and an easement for conservation purposes which prohibits any and all development on the property, including structures, landscaping, lighting and recreational uses, over Lots 10, 11, 12, 13, 14, 15, and 16. C. Subdivider has delivered to City and City has approved plans and specifications and related documents for certain "Works of Improvement" (as hereinafter defined) which are required to be constructed and installed in order to accommodate the development of the Property. D. Subdivider's agreement to construct and install the Works of Improvement pursuant to this Agreement and its offer of dedication of the streets, easements and other ^mM improvements and facilities, as shown on the Map, are a material consideration to City in approving the final map for the Property and permitting development of the Property to proceed. 0� ti a COVENANTS Based upon the foregoing Recitals which are incorporated herein by reference and in consideration of City's approving the Map forthe Property and permitting development of the Property to proceed, Subdivider agrees to timely perform all of its obligations as set forth herein. 1. Construction Obligations. 1.1 Works of Improvement. Subdivider agrees, at its sole cost and expense, to construct or install or cause to be constructed or installed the street, drainage, domestic water, sanitary sewer and other improvements (herein sometimes collectively referred to as the "Works of Improvement"), as the same may be supplemented and revised from time to time as set forth herein (said plans and specifications, together with all related documents, 1 water, sanitary sewer and other improvements(herein sometimes collectively referred to as the "Works of Improvement"), as the same may be supplemented and revised from time to time as set forth herein (said plans and specifications, together with all related documents, are referred to herein as the "Plans"). The estimated construction cost for the Works of Improvement is $520,000.00. 1.2 Other Obligations Referenced in Conditions of Tentative Map Approval. In addition to the foregoing, Subdivider shall satisfy all of the conditions of approval on the Tentative Map for the Property. The conditions of approval associated with the Tentative Map are included as Exhibit "A" attached hereto. 1.3 Intent of Plans. The intent of the Plans referenced in Section 1.1 is to prescribe a complete work of improvement which Subdivider shall perform or cause to be performed in a manner acceptable to the City Engineer (or his/her designee) and in full compliance with all codes and the terms of this Agreement. Subdivider shall complete a functional or operable improvement or facility, even though the Plans may not specifically call out all items of work required for the contractor to complete its tasks, incidental appurtenances, materials, and the like. If any omissions are made or information necessary to carry out the full intent and meaning of the Plans, Subdivider or its contractor shall immediately notify its design engineer who will seek approval of the City Engineer for furnishing of detailed instructions. In the event of any doubt or question arising regarding the true meaning of any of the Plans, reference shall be made to the City Engineer whose decision thereon shall be final. Subdivider recognizes that the Plans consist of general drawings. All authorized alterations affecting the requirements and information given on the Plans shall be in writing and approved by the City Engineer. The Plans shall be supplemented by such working or shop drawings as are necessary to adequately control the work. Without the City Engineer's prior written approval, no change shall be made by Subdivider or Subdivider's contractor to any plan, specification, or working or shop drawing after it has been stamped as approved. 1.4 Survey Monuments. Before final approval of street improvements, Subdivider will place survey monument(s) as shown on the Map in accordance with the provisions of the State Subdivision Map Act and the Subdivision Ordinance of the City of Palm Springs. Subdivider shall provide security for such obligation as provided in Section 4.1(a)(iii) and, after setting the monument(s), Subdivider shall furnish the City Engineer of the City of Palm Springs written notice of the setting of said monument(s) and written proof of having paid the engineer or surveyor for the setting of said monument(s). 1.5 Performance of Work. Subdivider shall furnish or cause to be furnished all materials, labor, tools, equipment, utilities, transportation, and incidentals required to perform Subdivider's obligations under this Agreement. 1.6 Changes in the Work. The City Engineer, without invalidating this Agreement and without notification to any of the sureties or financial institutions referenced in Paragraph 4, may order extra work or may make changes by altering or deleting any portion of the Works of Improvement as specified herein or as deemed necessary or desirable by the City Engineer as determined necessary to accomplish the purposes of this Agreement and to protect the public health, safety, or welfare. The City Engineer shall notify Subdivider or Subdivider's contractor in writing (by Correction Notice) at the time a determination has I 2 III I II I I III I 1 III II II I I II 02 05 5 ofs 38�@@R been made to require changes in the work. No field changes performed or proposed by Subdivider or its contractor shall be binding on City unless approved in writing by the City Engineer. 1.7 Defective Work. Subdivider shall cause its contractor to repair, reconstruct, replace, orotherwise make acceptable any work found by the City Engineerto be defective. 1.8 No Warranty by City. The Plans for the Works of Improvement have been prepared by or on behalf of Subdivider or its consultants or contractors, and City makes no representation or warranty, express or implied, to Subdivider or to any other person regarding the adequacy of the Plans or related documents. 1.9 Authority of the City Engineer. In addition to the authority granted to the City Engineer elsewhere in this Agreement, the City Engineer shall have the authority to decide all questions which may arise as to the quality and acceptability of materials furnished and work performed, and all questions as to the satisfactory and acceptable fulfillment of the terms of this Agreement by Subdivider and Subdivider's contractor. 1.10 Documents Available at the Site. Subdivider shall cause its contractor to keep a copy of all approved Plans at the job site and shall give access thereto to the City's inspectors and engineers at all times. 1.11 Inspection. Subdivider shall have an authorized representative on the job site at all times during which work is being done who has full authority to act for Subdivider, or its design engineer, and Subdivider's contractor(s) regarding the Works of Improvement. Subdivider shall cause its contractor to furnish the City with every reasonable facility for ascertaining whether or not the Works of Improvement as performed are in accordance with the requirements and intent of this Agreement, including the Plans. If the City inspector requests it,the contractor at any time before acceptance of the Works of Improvement shall remove or uncover such portions of the finished work as may be directed which have not previously been inspected. After examination, the contractor shall restore said portions of the work to the standards required hereunder. Inspection or supervision by the City shall not be considered as direct control of the individual workmen on the job site. City's inspector shall have the authority to stop any and all work not in accordance with the requirements contained or referenced in this Agreement. The inspection of the work by City shall not relieve Subdivider or the contractor of any obligations to fulfill this Agreement as herein provided, and unsuitable materials orwork may be rejected notwithstanding that such materials or work may have been previously overlooked or accepted. 1.12 Compliance With Law. In addition to the express provisions of this Agreement and the Plans, Subdivider shall cause construction of the Works of Improvement to be completed in accordance with all other applicable federal, state, and local laws, ordinances, rules and regulations. 1.13 Suspension of Work. City Engineer shall have authority to order suspension of the work for failure of the contractor to comply with law pursuant to Section 1.11. In case of suspension of work for any cause whatever, Subdivider and its contractor shall be 3 0�06 e ' 0a� feH11111111111111111111111 ' � responsible for all materials and shall store them properly if necessary and shall provide suitable drainage and erect temporary structures where necessary. 1.14 Final Acceptance of Works of Improvement. After Subdivider's contractor has completed all of the Works of Improvement, Subdivider shall then request a final inspection of the work. It items are found by the inspector to be incomplete or not in compliance with this Agreement or any of the requirements contained or referenced herein, City will inform the contractor of such items. After the contractor has completed these items, the procedure shall then be the same as specified above for the contractor's initial request for final inspection. If items are found by City's inspector to be incomplete or not in compliance after two (2) "final" inspections, City may require the contractor, as a condition to performing further field inspections, to submit in writing a detailed statement of the work performed subsequent to the date of the previous inspection which was found to be incomplete or not in compliance at that time. No inspection oracceptance pertaining to specific parts ofthe Works of Improvement shall be construed as final acceptance of any part until the overall final acceptance by City is made. Final acceptance shall not constitute a waiver by City of defective work subsequently discovered. The date on which the Works of Improvement will be considered as complete shall be the date of the Notice of Acceptance. 2. Time for Performance. 2.1 Commencement and Completion Dates. Subject to Section 2.2 and 2.3 below, Subdivider shall (i) commence with construction and installation of the Works of Improvement thirty (30) days following City's approval of the Plans ("Commencement Date"); and (ii) complete or cause to be completed all of the Works of Improvement two 2 years after the Commencement Date. Extensions of time for completion of the Works of Improvement may be granted upon approval by the City Engineer or his designee. Extension of time may be granted upon mutual agreement of the City Engineer and Subdivider, either verbally or in writing, as required by the City Engineer or his designee. 2.2 Phasing Requirements. Notwithstanding the provisions of Section 2.1, City reserves the right to control and regulate the phasing of completion of specific Works of Improvement as required to comply with applicable City ordinances, regulations, and rules relating to the timely provision of public services and facilities. In addition to whatever other remedies City may have for Subdivider's failure to satisfy such phasing requirements, as the same now exist or may be amended from time to time. Subdivider acknowledges City's right to withhold the issuance of further building permits on the Property until such phasing requirements are satisfied. Prior to issuance of building permits, Subdivider shall provide satisfactory evidence that all applicable requirements that are a condition to issuance of building permits have been satisfied. Such requirements may include the payment of fees, construction of improvements, or both. Final inspections or issuance of Certificates of Occupancy may be withheld from the Subdivider by the City, if, upon a determination by the City Engineer or his designee, completion of specific Works of Improvements or other requirements associated with the development of the Property have not been completed to his satisfaction. 4 II II I I III I I III III e0 z o328eear 0RII III 11111111 f 2.3 Force Majeure. Notwithstanding the provisions of Section 2.1, Subdivider's time for commencement and completion of the Works of Improvement shall be extended for the period of any enforced delay caused due to circumstances beyond the control and without the fault of Subdivider, including to the extent applicable adverse weather conditions, flood, earthquakes, strikers, lockouts, acts or failures to act of a public agency (including City), required changes to the Scope of Work required by City, and similar causes; provided, however, that the period of any enforced delay hereunder shall not include any period longer than five (5) days prior to City's receipt of a written notice from Subdivider or its Contractor detailing the grounds for Subdivider's claim to a right to extend its time for performance hereunder. City Engineer shall evaluate all claims to Force Majeure and his decision shall be final. 2.4 Continuous Work. After commencement of construction of the Works of Improvement(or separate portion thereof), Subdivider shall cause such work to be diligently pursued to completion, and shall not abandon the work for a consecutive period or more than thirty (30) days, events of Force Majeure excepted. 2.5 Reversion to Acreage. In addition to whatever other rights City may have due to Subdivider's failure to timely perform its obligations hereunder, Subdivider recognizes that City reserves the right to revert the Property to acreage subject to the limitations and requirements set forth in California Government Code Sections 66499.11-66499.20-3/4. In this regard, Subdivider agrees that if the Works of Improvement have not been completed on or before the later of two (2) years from the date of this Agreement or within the time allowed herein, whichever is the later, and if City thereafter initiates proceedings to revert the Property to acreage, pursuant to Government Code Section 66499.16 Subdivider hereby consents to reversion and agrees that any improvements made by or on behalf of Subdivider shall not be considered in determining City's authority to revert the Property to acreage. 2.6 Time of the Essence. Time is of the essence of Subdivider's performance of all of its obligations under this Agreement, 3. Labor. 3.1 Labor Standards. Subdivider shall be responsible for causing all contractors and subcontractors performing any of the Works of Improvement to comply with all applicable federal and state labor standards, including to the extent applicable the prevailing wage requirements promulgated by the Director of Industrial Relations of the State of California Department of Labor. 3.2 Nondiscrimination. Subdivider agrees that no contractor or subcontractor performing any of the Works of Improvement shall discriminate against any employee or prospective employee with respect to such work in hiring, promotion, seniority, or any other terms and conditions of employment on the grounds of race, creed, color, national origin, ancestry, religion, sex, or marital status. 3.3 Licensed Contractors. Subdivider shall cause all of the Works of Improvement to be constructed by contractors and subcontractors with valid California Contractors' licenses for the type of work being performed. 5 II I III I I III I II III 11111111111111111111111 ©8 0£4 32�00R 3A Worker's Compensation. Subdivider shall cause every contractor and subcontractor performing any of the Works of Improvement to carry Workers'Compensation Insurance as required by the Labor Code of the State of California and shall cause each such contractor and subcontractor to submit to City a Certificate of Insurance verifying such coverage prior to such contractor or subcontractor entering onto the job site. 4. Security. 4.1 Required Security. (a) At the time Subdivider executes this Agreement, Subdivider shall furnish to City the following bonds, letters of credit, instruments of credit (assignment of deposit account) or other security acceptable to City in its sole and absolute discretion and satisfying the requirements of the applicable provisions of this Section 4 below (hereinafter "Security Instruments"): (i) A Security Instrument securing Subdivider's faithful performance of all of the Works of Improvement ("Faithful Performance Security Instrument"), in the amount of $520,000.00 equal to 100% of the estimated construction cost referenced in Section 1.1. (ii) A Security Instrument guaranteeing the payment to contractors, subcontractors, and other persons furnishing labor, materials, and/or equipment ("Labor and Materials Security Instrument") with respect to the Works of Improvement in an amount equal to $260,000.00 equal to 50% of the estimated construction cost referenced in Section 1.1. (iii) A Security Instrument guaranteeing the payment of the cost of setting monuments as required in Section 1.4 in the amount of$9,850.00 equal to 100% of the cost thereof. This Agreement shall not be effective for any purpose until such Security Instruments are supplied to and approved by City in accordance herewith. (b) Required Security Instrument for Maintenance and Warranty. Prior to the City Council's acceptance of the Works of Improvement and recordation of a Notice of Completion, Subdivider shall deliver a Security Instrument warranting the work accepted for a period of one (1) year following said acceptance ("Maintenance and Warranty Security Instrument"), in the amount of$78,000.00 equal to 15% of the estimated construction cost set forth in Section 1.1 or a suitable amount determined by the City Engineer. 4.2 Form of Security Instruments. All Security Instruments shall be in the amounts required under Section 4.1 (a) or 4.1(b), as applicable, shall meet the following minimum requirements and otherwise shall be in a form provided by City or otherwise approved by the City Attorney: (a) Bonds. For Security Instruments provided in the form of bonds, any such bond must be issued and executed by an insurance company or bank authorized to transact surety business in the State of California. Any insurance company acting as surety shall have a minimum rating of A-IX, as rated by the current edition of Best's Key Rating Guide published by A.M. Best's Company, Oldwick, New Jersey, 08858. Any bank acting as surety shall have a minimum rating of AA, as rated by Moody's or Standard & Poor's. 6 IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIN eares�9 oc a2$eaA (b) Letters of Credit. For Security Instruments which are letters of credit, any letter of credit shall be an original separate unconditional, Irrevocable, negotiable and transferable commercial letter of credit issued by a financial institution with offices in the State of California acceptable to City. Any such letter of credit shall specifically permit City to draw on same by unilateral certification of the City Engineer of the City that Subdivider is in default under its payment or performance obligations hereunder or in the event Subdivider fails to deliver a replacement letter of credit not less than thirty(30)days prior to the date of expiration of any such letter of credit and shall further be subject to the provisions of Section 4.4. (c) Instrument of Credit. For Security Instruments which are Instruments of Credit, any Instrument of Credit shall be an assignment of deposit account assigning as security to City all of Subdivider's interest in funds on deposit in one or more bank accounts with financial institutions acceptable to City. (d) General Requirements for all Security Instruments. (i) Payments under any Security Instruments shall be required to be made (and, with respect to bonds, litigation shall be required to be instituted and maintained) in the City of Palm Springs, State of California (and the Security Instrument shall so provide). (ii) Each Security Instrument shall have a minimum term of one (1) year after the deadline for Subdivider's completing the Works of Improvement, in accordance with Section 2.1 (other than Instruments of Credit, which shall have no defined term or expiration date). (iii) Each Security Instrument shall provide that changes may be made in the Works of Improvement pursuant to the terms of this Agreement without notice to any issuer or surety and without affecting the obligations under such Security Instrument. 4.3 Subdivider's Liability. While no action of Subdivider shall be required in order for City to realize on its security under any Security Instrument, Subdivider agrees to cooperate with City to facilitate City's realization under any Security Instrument, and to take no action to prevent City from such realization of any Security Instrument. Notwithstanding the giving of any Security Instrument or the subsequent expiration of any Security Instrument or any failure by any surety or financial institution to perform its obligations with respect thereto, Subdivider shall be personally liable for performance underthis Agreement and for payment of the cost of the labor and materials for the improvements required to be constructed or installed hereby and shall, within ten (10)days after written demand therefor, deliver to City such substitute security as City shall require satisfying the requirements in this Section 4. 4.4 Letters of Credit. (a) In the event a letter of credit is given pursuant to Section 4.2(b), City shall be entitled to draw on any such letter of credit if a replacement letter of credit (expiring in not less than one (1) year, unless City agrees to a lesser term in City's sole and absolute discretion) is not delivered not less than thirty(30)days prior to the expiration of the original letter of credit, such substitute letter of credit being in the same amount and having the terms and conditions as the initial letter of credit delivered hereunder, issued by a financial institution acceptable to City as of the date of delivery of the replacement letter of credit. 7 IIII 1111111111111111 N3 e��1 of2 @ 3 OR 0 : (b) In the event of draw by the City on a letter of credit, the City may elect, in its sole and absolute discretion, to apply any such funds drawn to the obligations secured by such letter of credit or to hold such funds in an account under the control of the City, with no interest accruing thereon for the benefit of the Subdivider. If the City elects to hold the funds in an account pursuant to the foregoing, City may thereafter at any time elect instead to apply such funds as provided in the foregoing. Subdivider agrees and hereby grants City a security interest in such account to the extent required for City to realize on its interests therein and agrees to execute and deliver to City any other documents requested by City in order to evidence the creation and perfection of City's security interest in such account. 4.5 Release of Security Instruments. (a) City shall release the Faithful Performance Security Instrument and Labor and Materials Security Instrument when all of the following have occurred: (i) Subdivider has made written request for release and provided evidence of satisfaction of all other requirements in this Section 4.5; (ii) the Works of Improvement have been accepted; (iii)Subdivider has delivered the Maintenance and Warranty Security Instrument; and (iv) subject to the following sentences after passage of the time within which lien claims are required to be made pursuant to Article 3 (commencing with Section 3114) of Chapter 2 of Title 15 of Part IV of Division 3 of the California Civil Code. If lien claims have been timely filed, City shall hold the Labor and Materials Security Instrument until such claims have been resolved, Subdivider has provided a statutory bond, or otherwise as required by applicable law. (b) City shall release the Maintenance and Warranty Security Instrument upon Subdivider's written request upon the expiration of the warranty period, provided no claims are outstanding at that time regarding defective work. 5. Cost of Construction and Provision of Inspection Service. 5.1 Subdivider Responsible for All Costs of Construction. Subdivider shall be responsible for payment of all costs incurred for construction and installation of the Works of Improvement. In the event Subdivider is entitled to reimbursement from City for any of the Works of Improvement, such reimbursement shall be subject to a separate Reimbursement Agreement to be entered into between Subdivider and City prior to construction of the works. 5.2 Payment to City for Cost of Related Inspection and Engineering Services. Subdivider shall compensate City for all of City's costs reasonably incurred in having its authorized representative make the usual and customary inspections of the Works of Improvement. In addition, Subdivider shall compensate City for all design, plan check, evaluating any proposed or agreed-upon changes in the work. The procedures for deposit and payment of such fees shall be as established by the City Council. In no event shall Subdivider be entitled to additional inspections or a final inspection and acceptance of any 8 IIIIII IIIII III IIIII I III III IIII III IIIII III IIII 03r@5Ii0of'82 of'the Works of Improvement until all City fees and charges have been fully paid, including without limitation, charges for applicable penalties and additional required inspections. 6. Acceptance of Offers of Dedication. The City Council shall pass as appropriate resolution or resolutions accepting all offers of dedication shown on the Map for the Property, with acceptance to become effective upon completion and acceptance by City of the Works of Improvement. Such resolution(s) shall authorize the City Clerk to execute the Certificate made a part of the Map regarding said acceptance of the offer of dedication. 7. Warranty of Work. Subdivider shall guarantee all Works of Improvement against defective materials and workmanship for a period of one (1) year from the date of final acceptance. If any of the Works of Improvement should fail or prove defective within said one (1) year period due to any reason other than improper maintenance, or if any settlement of fill or backfill occurs, or should any portion of the Works of Improvement fail to fulfill any requirements of the Plans, Subdivider, within fifteen (15) days after written notice of such defects, orwithin such shortertime as may reasonably be determined by the City in the event of emergency, shall commence to repair or replace the same together with any other work which may be damaged or displaced in so doing. Should Subdivider fail to remedy defective material and/or workmanship or make replacements or repairs within the period of time set forth above, City may make such repairs and replacements and the actual cost of the required labor and materials shall be chargeable to and payable by Subdivider. The warranty provided herein shall not be in lieu of, but shall be in addition to, any warranties or other obligations otherwise imposed by law. 8. Default. 8.1 Remedies Not Exclusive. In any case where this Agreement provides a specific remedy to City for a default by Subdivider hereunder, such remedy shall be in addition to, and not exclusive of, City's right to pursue any other administrative, legal, or equitable remedy to which it may by entitled. 8.2 City Right to Perform Work. In addition to whatever other rights or remedies it may have for Subdivider's default hereunder, in the event Subdivider shall fail to timely perform any work required to be performed under this Agreement and such failure shall continue for a period of twenty (20) days after receipt of written notice of default from City, or thereafter Subdivider shall fail to diligently and continuously pursue the cure of any such default to completion, City shall have the right to enter into the Property and perform any of the uncompleted work by force account or contract or both and thereupon recover from Subdivider or any Security Instrument, or both,the full cost and expense thereby incurred by City. 8.3 Attorney's Fees and Costs. In the event that Subdivider fails to perform any obligation under this Agreement, Subdivider agrees to pay all costs and expenses incurred by City in securing performance of such obligations, including costs of suit and reasonable attorney's fees. In the event of any dispute arising out of Subdivider's performance of its obligations under this Agreement or under any of the Security Instruments referenced herein, the prevailing party in such action, in addition to any other relief which may be granted, shall be entitled to recover its reasonable attorney's fees and costs. Such attorney's fees and cost shall include fees and costs on any appeal, and in addition a party entitled to attorney's fees and costs shall be entitled to all other reasonable costs incurred 9 III III IIIII III 1111 ea 12;0s012 of 32 iri investigating such action, taking depositions and discovery, retaining expert witnesses, and all other necessary and related costs with respect to the litigation. All such fees and costs shall be deemed to have accrued on commencement of the action and shall be enforceable whether or not the action is prosecuted to judgment. 9. Indemnity. Subdivider agrees to indemnify, defend, and hold harmless City and City's officers, employees, and agents from and against any and all claims, liabilities, losses, damages, causes of action, and obligations arising out of Subdivider's failure to perform the construction and installation of the Works of Improvement in accordance with the requirements contained or referenced in this Agreement. Said indemnity obligation shall apply to personal injury, death, property damage, economic loss, and any other monetary damage or penalty to which City may be subjected, including without limitation, attorney's fees and costs and the costs of realizing on any Security Instrument provided by Subdivider pursuant to the terms hereof. Such indemnity obligation shall not extend to any loss resulting from City's sole negligence or wilful misconduct. 10. General Provisions. 10.1 Successors and Assigns. This Agreement shall be binding upon all successors and assigns to Subdivider's right, title, and interest in and to the Property and any portion thereof. 10.2 No Third Party Beneficiaries. This Agreement is intended to benefit only the parties hereto and their respective successors and assigns. Neither City nor Subdivider intend to create any third party beneficiary rights in this Agreement in any contractor, subcontractor, member of the general public, or other person or entity. 10.3 Entire Agreement: Waivers and Amendments. This Agreement integrates all of the terms and conditions mentioned herein, or incidental hereto, and supersedes all negotiations and previous agreements between the parties with respect to all or part of the subject matter hereof, except as may be expressly provided herein. All waivers of the provisions of this Agreement must be in writing and signed by an authorized representative of the party to be charged, and all amendments hereto must be in writing and signed by the appropriate representatives of both parties. 11. Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant the (1) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into of this Agreement does not violate any provisions of any other Agreement to which said party is bound. 10 IIIIIII III IIIIII III 1111 3 00�130of 32 OGA 1N WITNESS WHEREOF, the parties hereto have executed this Subdivision Improvement Agreement as of the date first above written. ATTEST: CITY OF PALM SPRINGS, CALIFORNIA By Patricia A. Sanders, City Clerk David Ready,City er APPROVED .AS TQ FORM RECOMMENDED BY: �l ftorney late City Engineer QTV COUNCIL SUBDIVIDER: Preserve Golf Company, LLC, a California Limited Liability Company 6� �•�1�� (Check One: _individual, _partnership, X corporation) 6 By: y 9.k - Signature By. William H. Mcwethy, Jr. , Managing Member Name and Title Mailing Address: 11839 Sorrento Valley Road San Diego, CA 92127 ! 111I I II IIIIIIIIIIIIIIflIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIlIII ©a e064 safes eeR Under the provisions of Government Code 27361.7, I certify under the penalty of perjury that the notary seal on the document to which this statement is attached reads as follows: Name of Notary : `,i f'k,! d Commission# Place of Execution : i,9 C Date Commission Expires u Date : �� i�. , Signature 4-0154782 ��IIIIII Eil IIIII IIIIII III IIIIIII{I IIIIII I IN9'�00�17 04�08�00F } i 4. That the property owner(s) and successors and assignees in interest shall maintain and repair the improvements including and without limitation sidewalks, conservation easements, landscape, irrigation, lighting, signs,walls, and fences between the curb and property line, including sidewalks,conservation easement areas that extend onto private property, in a first class condition, free from waste and debris, and in accordance with all applicable law, rules, ordinances and regulations of all federal, state, and local bodies and agencies having jurisdiction at the property owner's sole expense. This condition shall be included in the recorded covenant agreementforthe property if required by the City. 5. The mitigation measures of the environmental assessment shall apply. The applicant shall submit a signed agreement that the mitigation measures outlined as part of the negative declaration will be included in the plans prior to Planning Commission consideration of the environmental assessment. 6. Final landscaping, irrigation, exterior lighting, gates and fencing plans and an entry plan shall be submitted for approval by the Department of Planning and Building prior to issuance of a building permit. Landscape plans shall be approved by the Riverside County Agricultural Commissioner's Office prior to submittal. 7. The project is subject to the City of Palm Springs Water Efficient Landscape Ordinance. The applicant shall submit an application for Final Landscape Document Package to the Director of Planning and Building for review and approval prior to the issuance of a building permit. Refer to Chapter8.60 of the Municipal Code for specific requirements. S. Prior to issuance of a grading permit, a Fugitive Dust and Erosion Control Plan shall be submitted and approved by the Building Official. Refer to Chapter 8.50 of the Municipal Code for specific requirements. 9 The grading plan shall show the disposition of all cut and fill materials. Limits of site disturbance shall be shown and all disturbed areas shall be fully restored or landscaped. The plan shall include the elimination of all topographic features associated with the former golf course. All lakes, berms, tees and greens shall be removed. The plan shall include pad and finish floor elevations at or below those of the adjacent residences to the north. 10. Drainage swales shall be provided adjacent to all curbs and sidewalks -3'wide and 6" deep. The irrigation system shall be field tested prior to final approval of the project. Section 14.24.020 of the Municipal Code prohibits nuisance water from entering the public streets, roadways or gutters. 11. All proposed trees within the public right-of-way and within 10 feet of the public sidewalk and/or curb shall have City approved deep root barriers installed per City of Palm Springs Engineering specifications. II II I I IIIII II III III III I IIII 03/ 50 2 0£03 2